Challenging or contesting a will can be a daunting task. First, losing a loved one or a family member is difficult and challenging their will makes it an even more emotional process. Also, courts are often wary when it comes to changing wills and going against the wishes of the deceased and will only do so for legitimate reasons. If you or any interested party feels they have been left out of a will, you may consider contesting it. However, since the process is quite complicated and you can only challenge a will under limited circumstances, it's crucial to know what you're getting yourself into first. Therefore, here is everything worth knowing about contesting a will.
Are You Eligible to Contest the Will?
Not everyone can contest a will. Also, the legal process when it comes to eligibility to challenge a will is diverse across every state and territory. You may need a solicitor to help you understand the laws that apply in your state or territory. However, in most cases, you can challenge a will if you can demonstrate that the deceased had a moral duty to provide for you. Generally, you can contest a will if you are closely related to the deceased.
That means you can make a claim to contest a will if you were the deceased's spouse, whether a former partner or a partner at the time of their death. You can also contest a will if you were the deceased's de facto partner, child (stepchild, adopted child or believing child), grandchild or dependant. Keep in mind that the court will consider a range of elements such as the age, physical or mental disabilities and financial resources of an applicant before deciding whether he or she is eligible for a portion of the deceased's estate.
On What Grounds Can You Contest the Will?
Even if you're eligible to contest or challenge the will, you can only do so under certain circumstances. First, you can challenge a will if you can provide evidence that it was not the last one the deceased drew up. You can also challenge a will if you can prove that it was drawn under undue influence, that it was procured by fraud, that forgery or tampering was involved or if the deceased lacked the mental capacity to draw a valid will. In the case of mental capacity, you can provide evidence of senility, a medical condition that may have affected the deceased's mental capacity, or the influence of drugs and alcohol that may have altered the mental state of the deceased at the time of creating the will.
Is There A Time Limit to Bring Your Claim to Contest the Will?
Yes. But these will vary depending on the state or territory you are in. Your solicitor will help you know the time limits you have to make your claim to contest the will.
Share22 August 2018
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.