Contesting or challenging a Will: Understanding the Process and Important Considerations
A Will is a legal document that outlines a person’s instructions about what is to happen with their assets after death. If properly drafted and signed, a Will is a legally binding document and must be followed. However, it is possible to change the effect of a Will in certain circumstances. The two main ways a Will may be amended or set aside are by:
- An eligible person who is dissatisfied with what they receive from the Will; and
- Proving the Will was not validly made.
Although not legal correct terms, making a claim to amend or set aside a Will is commonly referred to as ‘’challenging” or ‘’contesting’’.
Further Provision from a Will for a dissatisfied person
Only spouses or partners, children (of any age), stepchildren and certain other dependants are eligible to claim more from an estate than what is promised to them. An eligible applicant must also demonstrate that the amount left to them in the Will, if anything, is not adequate for their proper maintenance and support.
It is important to remember that a court will not rewrite a Will to achieve fairness or equality. A Will is disturbed as little as possible, and only enough to provide adequate financial support for an applicant.
The Process
The process to follow will differ depending on your circumstances and the nature of the issue, but generally will involve:
- Consulting a solicitor: Contesting a will is a complex legal process, so it’s crucial to seek the advice of an experienced succession law solicitor as early as possible. They will be able to smoothly guide you through the process.
- Gathering evidence: To contest a will successfully, you’ll need substantial evidence supporting your claim. This may include medical records, witness testimonies, financial documents, and any other relevant information that strengthens your case.
- Filing a claim: Your solicitor will help you draft and file an application in the appropriate court. The application material outlines the reasons for contesting the will and presents your evidence.
- Settlement: In most cases, the matter will settle before ever seeing the inside of a courtroom. The parties are usually bound to attend a compulsory mediation. Only if mediation is unsuccessful does the matter proceed to trial, where a judge will make a final decision based on the evidence.
Important Considerations
Time limitations: In Queensland, there are specific time limits governing both when you must notify the estate of your intention to make a claim and when you must commence that claim. It’s critical to comply with the timeframes otherwise you may forever lose your entitlement to make a claim.
Costs: Legal fees associated with contesting a will can be significant. Depending on the circumstances of your matter, our firm offers several fee arrangements such as a ‘No-Win, No-Fee’ arrangement, deferred payment and a free initial consult.
Emotional impact: Contesting or challenging can put strain on family relationships that may already be emotionally sensitive following a loved one’s death. Engaging experienced and empathetic solicitors can help to minimise that strain, protect vulnerable parties and preserve family ties as much as possible.
Location: The relevant law differs significantly in every state and territory in Australia. What applies in Queensland will not necessarily apply anywhere else.
Get in touch
Contesting a Will is a complex legal process that requires careful consideration of various factors. At Greenhalgh Pickard our team can comprehensively evaluate your situation and guide you through the process, increasing your chances of a successful outcome. It’s important to approach the process with realistic expectations and seek professional guidance to navigate the complexities of contesting a will effectively.
Contact Greenhalgh Pickard today to start the process today.
Greenhalgh Pickard’s Wills and Estate Lawyers Sunshine Coast
Disclaimer:
The information contained in this article is for general informational purposes only and is not intended to provide legal advice or substitute for the advice of a professional. This information does not consider your personal circumstances and may not reflect the most current legal developments. Should you need advice, please contact our firm for targeted information relating to personal your situation.