What should you do if you're unhappy with the contents of somebody's will? Do you feel that your loved one's assets are not being properly disposed of, or that you should be more clearly accounted for according to their wishes? You may have legal recourse according to the legal system in Australia, so what do you need to know before you come up with a challenge?
The first thing that you need to ensure is that the will is valid in the eyes of the law. There are very strict requirements set down that determine how a will can be drawn up, who should witness it and how it should be signed. Note that there are no specific laws in relation to beneficiaries and how much they may get, but the validity is all-important. Is somebody legally eligible to create their own will? They have to be over the age of 18 and they have to be in sound mind. It's important that no external duress was brought to bear, or that somebody should influence them unduly with regards to the creation of the will. Witnesses need to be present when the will is signed and these cannot include any beneficiary.
The validity of a will can be challenged in court if you think that any of the aforementioned rules have been broken. For this to happen, a summons has to be issued and this will have the effect of "freezing" the distribution of the estate, according to an injunction. To put this ball in motion, you need to talk with a lawyer to draw up an affidavit, while evidence to support your claim is also gathered.
Separately, you may be able to bring a case if you feel that inadequate provision has been made for vulnerable people such as children, or a spouse. This is known as "contested probate." In certain circumstances, such dependents have a right to look for a more equitable distribution, if they have a good case that their well-being may be affected in the future. There are a lot of things to consider here, including the type of relationship that existed before, age, circumstances and the actual needs of those who bring forward the case. A judge will also look at how the potential new distribution could affect others named in the will.
Sometimes, the deceased will not have created a will and will be intestate. When this happens, the court has much more jurisdiction and will aim to provide as equitably as possible for the dependents. Legislation has been drawn up to account for this situation and will look at each person according to a specific priority.
Given the complexities of the situation and the scale of what may be at stake, it's always a good idea to talk with a lawyer that specialises in these matters.Share
9 May 2017
Hello, my name is Jenny and this is my probate law blog. I should say now, I am not a lawyer and I have not had any professional legal training. However, I do know a thing or two about probate. I taught myself a lot after the death of my grandma. My grandma left a lot of money and property behind, but unfortunately, she didn't leave a will. This lead to several family members staking a claim on the inheritance. I instructed a lawyer to act on my mother's behalf to ensure that she was not cheated out of her share.