If you are a disappointed beneficiary as you have been left out of a will, or you believe that the will gives you an unfair share of the estate, then you may have grounds to contest, challenge or dispute the will. For example, you may form the view that the deceased lacked the necessary capacity to make a will.

Fay can work with you to determine if you are able to challenge or contest a will that you think is unfair and then guide you through the process.

Below, Fay summarises what’s involved in both scenarios:

Contesting a will

Where there is a will, there is often a relative asserting on the death of a parent, or a partner, or former partner that the bequest in the will was inadequate, or that the deceased failed to make provision in the will.

In order to make such a claim you must be considered an eligible person and fall into one of the following categories as:

• A spouse or de facto partner, or a former spouse, or former de facto partner of the deceased
• A child of the deceased including an adopted child
• A grandchild of the deceased, provided that you as a grandchild can establish that the deceased grandparent acted more as a parent than a grandparent with direct responsibility for the grandchild’s support or welfare
• A member of the deceased’s household
• A person living in a close personal relationship with the deceased at the time of death

To succeed in a claim to contest the will you will have to bring evidence to the court that you have not received any or any adequate provision for your proper maintenance, education or advancement of life.  A judge will look at such factors as:

• The overall provisions of the will
• The specific provisions made in the will for you
• Your personal circumstances including your finances
• The circumstances of other eligible persons
• The nature and duration of the relationship with the deceased. For example, did you share a good relationship, were you estranged?
• Your health
• Your capacity to derive an income or factors that prevent you seeking any form of gainful employment
• The size of the estate
• Any financial or non-financial contributions you made for the benefit of the deceased

Challenge to a will

You may challenge a will asserting that the will is not valid on a number of grounds, such as:

• The will was not the last will and testament of the deceased
• You have been omitted from the last will of the deceased but had been included in previous wills and have a basis to make a challenge
• The deceased lacked the necessary testamentary capacity to make the will at the time it was signed
• Undue influence had been exerted on the deceased at the time the will was made
• Suspicious circumstances surrounded the preparation and the execution of the will such as the health of the deceased and the circumstances surrounding the making of the will
• The will failed to comply with provisions of the legislation such as it was not signed correctly or in the presence of 2 witnesses

Fay can discuss all these issues with you to determine the best way forward for you.

To discuss your matter in a private and professional environment, complete your details below, or call Fay directly on 0416 196 541

Free 15 minute initial consultation.