Challenging a Will

It is often difficult for people to accept that it is possible for their will to be contested.

There are a number of ways when this might occur, including if:

 

-The testamentary capacity of the will maker is questionable, for example where they may have been suffering from some mental defect at the time of making the will and their ability to appreciate the consequences of their actions in making the will are doubtful;

-A person or persons have put undue pressure on a will maker to make a will in particular terms, for example a relative pressuring a will maker to leave them a certain gift or share of the will maker’s estate;

-The will is poorly worded meaning that its terms are not clear and the intention of the will maker is uncertain;

-A person within a class of eligible claimants has not been afforded adequate provision under the will.

 

The last point is the most common reason that wills are contested. The laws in this area largely evolved as a social measure to ensure that those who should morally be provided for, receive an adequate inheritance. The people who are eligible to contest a will on this basis are generally limited to the will maker’s spouse (including an ex- spouse), a domestic partner that can satisfy the requirements of a domestic relationship and children of any age (including children of spouses and domestic partners). In certain circumstances grandchildren, parents and siblings are able to make a claim against a will maker’s deceased estate on the basis of inadequate provision.

Simply falling into one of these categories and being eligible to make a claim does not mean that such a claim will succeed. The Court takes into account a range of factors including the size of the estate, the competing claims of the beneficiaries under the wills, the interests of any other eligible claimants, the particular needs of the respective claimants and the nature of the relationship between the deceased person and the claimant.

It is ultimately for a court to decide whether a will maker has made adequate provision for a particular person. Specific legal advice should be sought as soon as possible after the death of the relevant person, as time limits exist for making inheritance claims.

If you think that there is something ‘not quite right’ about the circumstances surrounding the making of a will, get advice as soon as possible.

If you consider that you are eligible to make a claim for further provision from a deceased estate and that you have not been afforded adequate provision from the estate under the terms of a will, seek legal advice as soon as possible.

If you are a beneficiary of an estate under a will and someone is making a claim for further provision, you should understand the relevant laws and get legal advice to best protect your rights.

Contact Tim today for expert advice on 08 8344 6422.