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Disputing a Will – Q&A

Disputing a willWhen a person makes a Will, they have the right to decide who will inherit their assets after they die. But there are also laws to protect people who are not properly provided for in a Will.

If you believe you have not received a fair inheritance, you may have the legal right to contest the Will.

When can I dispute a Will?

The time limit in which to make a claim is within 9 months of the date of death, but the estate may be distributed 6 months after the date of death if there is no notice of any application or intended application for family provision.  Therefore, if you intend to make a claim against an estate, you should give notice of your intention to file an application for provision or further provision within 6 months from the deceased’s date of death.

It is at the Court’s discretion whether to extend the time after 9 months if it is satisfied that sufficient cause can be shown.

Who can dispute a Will?

A deceased person’s spouse, child or dependent, who considers that adequate support has not been made for his or her proper maintenance and support, can contest a Will.  Specifically, this includes:

  • the wife or husband of the deceased at the time of death;
  • a de-facto partner of deceased at time of death;
  • a former legal spouse (must not be remarried and be receiving or entitled to maintenance OR be a parent of minor child of deceased and dependent at date of death);
  • a child of the deceased;
  • a step-child or adopted child of the deceased;
  • a dependent of the deceased who at the time of death was wholly or substantially maintained or supported by the deceased and either a parent of deceased, parent of a child of deceased or person under 18;

On what grounds can I dispute a Will?

The court will consider a wide range of relevant factors when deciding if adequate provision has been made from the estate for your proper maintenance and support including:

  • Your financial position, and specifically your financial needs relative to the value of the estate;
  • Your health, family responsibilities and general circumstances.
  • The size and nature of the deceased’s estate;
  • The relationship between yourself and the deceased;
  • The financial position, health and family circumstances of other persons who have a legitimate claim on the estate.
  • The relationship the deceased had with other persons who have a legitimate claim on the estate.
  • The financial position, health and family circumstances of the beneficiaries named in the Will in comparison with your own financial circumstances.

A will can also be challenged on the following grounds:

Undue Influence:  a Will may be set aside if it can be shown that undue influence has been exerted on the person making the Will.

Incapacity:  A person must have sound mind, memory and understanding to make a Will.  If a person lacks capacity to make the Will (i.e., they did not understand the nature and effect of their Will they were signing or were unable to make rational decisions about how their estate is distributed), the Will may be declared invalid.

Contract to make mutual Wills:  sometimes people may choose to enter into a binding contract to make their Wills in a certain way and not to change them. If they enter into such a contract and one of them later changes their Will without the consent of the other, any beneficiaries who miss out on their entitlement under the Will may be able to enforce the agreement and set aside the later Will made in breach of the agreement.

More information

This document contains only a brief summary of the laws about contesting an estate. If you have concerns that you have not been adequately provided for in a Will, and would like further advice please contact one of our experienced wills and estate planning lawyers.

David Whitehill
Phone: 07 3210 6500
Email: dwhitehill@cp484.ezyreg.com

Glen McCracken
Phone: 07 4639 0307
Email: gmccracken@cp484.ezyreg.com

Katie Cameron
Phone: 07 4639 0323
Email: kcameron@cp484.ezyreg.com

PDF:  Disputing a Will – Q&A

 

 

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