Wondering if you have grounds to contest a Will? Disputes regarding Wills and estates are difficult and it can be a challenge to mount a successful challenge to a Will, however it is possible. There are a range of situations where the validity of a Will can be challenged or the wishes expressed in the Will can be contested.
There are a range of disputes that can arise from the reading of a Will after the passing of a person. Typically, these involve issues relating to the way that an estate is being inherited by beneficiaries. It is not uncommon for family members to feel that they have been left out or mistreated in a Will, especially when the family had experienced tension or estrangement before the death of a person.
Some of the common disputes relating to Wills include:
- Clarifying the meaning of a statement or provision.Although a legal Will should always be clear and unambiguous, occasionally something might not be black and white. In this case, beneficiaries – or people who believe they should be beneficiaries – may contest the Will.
- Administration of the Will and estate. The executor of the estate is responsible for administrating the Will. However, sometimes this can lead to problems. This is especially common when one sibling is designated administrator and other siblings feel they are not being given their fair share.
- Removing executors or trustees. In some cases, an executor or trustee may have been removed between versions of the Will. When this happens, the person who thought they were the executor may be upset and want to challenge the decision to remove them.
- Missing beneficiaries. Most people will leave their estate to their family members and other important people in their lives. However, this isn’t always the case. When beneficiaries are missing, they may feel hard done by and want to contest the Will to receive parts of the estate that they feel belong to them.
Challenging a Will
After a person dies, their Will is normally viewed as an accurate expression of their final wishes and unable to be argued with. However, there are some circumstances where the validity of a Will can be challenged.
When people die in old age, their cognitive function may have declined. A challenge could be made on the basis that they did not have the capacity to make a Will at the time it was signed.
All Wills require witnesses to be valid under the law. These witnesses should be people unrelated to the estate. If one of the witnesses can inherit under the Will, the Will may be challenged.
Finally, if a Will was made under the influence of others, this could be the basis for a challenge or dispute.
Viewing a Will
Several people have a right to view a Will before it becomes a public document. The person who has the Will must show it to all beneficiaries, anyone who was named in an earlier version of the Will, and anyone who would have been entitled to benefit if the person had left no Will.
Family members are entitled to view the Will as well. This includes parents, guardians and children of the Will-maker. It can also include the spouse or domestic partner of the person who wrote the Will, but this person must have been the partner when the person died.
Additionally, if anyone under 18 was mentioned in the Will, or would have been entitled to benefit from the Will, that person’s parent or guardian also has the right to view the Will.
After probate, the Will becomes a public document. This means that anyone can see it by searching the Supreme Court probate records.
There is a system is place for people who believe they were entitled to receive an inheritance to challenge a Will based on the idea that the person who passed away had a ‘moral duty’ to provide for them. Most commonly, this will be children and dependents, parents, and spouses or partners. The person who wants to make a claim on this basis needs to be closely related to the Will-maker. Another member of the household or grandchildren may also be eligible if they can show that they were dependent or partly dependent on the Will-maker.
If you have been left out of a Will and you fit this category, you can challenge a Will through a process called a ‘testator’s family maintenance’. This process occurs through the Supreme Court and it’s a good idea to work with a will disputes lawyer.
When the court considers a testator’s family maintenance, they will look at several factors to determine if the challenge to the Will is valid. Some of the questions the court will try to find an answer for include:
- Why was this person left out of the Will?
- Did the person who died have a moral duty to provide for the applicant?
- Did the Will-maker leave anything to the applicant? Was this amount insufficient?
- What relationship did the Will-maker have with the applicant?
- Does the applicant have any disabilities?
- How will a change to the Will affect other named beneficiaries?