Contesting a Will

A person is entitled to make their Will as they please; however, potential beneficiaries are also entitled to dispute it.

Disputed wills are becoming increasingly common. Queensland law states that family members and dependents to make a claim against the will if they feel they have been overlooked or inadequately provided for.

We are here to make this process easier for you. If you are require further information regarding will disputes, please call us on 1300 580 413

 

When should I start?

Written notice must be given within six (6) months and legal action commenced within nine (9) months of the date of death. To get started, collect relevant information as best you can including a list of estate assets, a list of surviving dependants and particulars of your relationship with the deceased.

Grounds for challenging a will;

  • How do they arise?A challenge to a will may arise from one or more of the following legal principles:-
    1. Courts have power to ensure that family members and dependants have been adequately provided for.
    2. The formal requirements for making a will and amending a will must be strictly observed.
    3. The will must genuinely reflect the will maker’s last testamentary intentions.
    4. The will maker must have had legal capacity at the time of making it.
    5. The will must not have been the product of undue influence exerted by another person.
    6. An agreement by a will maker to provide a benefit to a person can be enforced against their estate if the person receiving the benefit has provided valuable consideration.
    7. Each provision in a will must precisely achieve the intention of that provision.

    Family Provision

    • Challenge by overlooked relative or dependant or for increased share in estate because of being inadequately provided for

    The law allows family members or dependants who have been overlooked or inadequately provided for in a will, to bring a lawsuit for estate allocation to them.

    Typically these claims come from a child, spouse, or former wife left out of a will or a beneficiary wishing to challenge the fairness of the gift allocated to them.

    Written notice must be given to the executor within six (6) months and legal action commenced within nine (9) months of the date of the deceased’s death.

    The contest can be resolved by agreement but if not, is determined by a court.

    Factors that the court will consider when determining if the applicant has a valid claim include:

    • the relative financial positions of the parties;
    • relationships between the deceased and all potential beneficiaries;
    • the size of the estate;
    • any special needs; and
    • the fairness of reducing benefits to specified beneficiaries for the benefit of someone who has been intentionally omitted or provided a minor benefit.

    The application must be supported by a detailed affidavit setting out the history and all relevant facts.

    Validity of will or amendment

    • Challenge to entire will or a provision within it because of informality or non-conformity with rules for making testamentary instruments

    Handwritten or interlineated alterations to a will or other testamentary disposition codicil should raise a red flag as to “validity”.

    Likewise any irregularity as to the signing of each page of the will or the absence of either witness’s signature on any page.

    An executor or beneficiary who is concerned about the above may apply to the court for that issue to be determined on evidence.

    Testamentary intentions

    • Challenge to will on basis that an earlier will more correctly reflects the testator’s genuine intention

    A hasty revision of a will to remove a beneficiary motivated by spite or paranoia might not reflect the will maker’s genuine testamentary intention. Such wills can be the subject of a requirement that they be proved in solemn form, in which case the executor must satisfy the court on evidence, of that requirement.

    Capacity

    • Challenge to validity of will due to testator’s mental condition at time it was made

    Persons with diminished mental acuity eg with dementia, lack legal ‘capacity’ and can only make a valid will (or vary one) during a medically certified “lucid” period.

    To have capacity, the testator needs to know what a will is, what their property is and the people that have a reasonable claim to the estate.

    The best defence against a claim that an aged or infirm testator lacked the requisite legal capacity, is a medical certificate dated at the time of the will, certifying the person to be capable of making legal decisions connected with it.

    If incapacity is alleged, the will must be proved in ‘solemn form’.

    Undue influence

    • Challenge to a benefit to a person whose influence on the will-maker directed the giving of a benefit to that person

    Wills can be challenged if they are made under the influence of an overbearing relative, friend or advisor. This usually occurs when there is an imbalance of power in the relationship, where the weaker party agrees to the more dominant party’s desires contrary to their wishes. A full examination of all the circumstances under which the will or codicil was made is required.

    The exercise of undue influence is a matter of evidence and can not be established by suspicion alone.

    Testamentary agreement

    • Claim that will-maker agree to grant a person a testamentary benefit in consideration for services performed during their life time

    A documented agreement to provide a benefit for a person’s estate, for example to a companion for the provision of services in the person’s lifetime, is enforceable even if the will omits the gift.

    Likewise an agreement to make mutual wills. Disputes sometimes occur in blended families if one partner changes their will after the death of the other, thereby depriving the children of the first deceased partner any benefit from their parent’s estate.

    If such agreements are not formally documented, disputes may be difficult to resolve. An executor is entitled to be presented with satisfactory evidence as to the existence of the agreement and that the person claiming the benefit provided the services claimed to have been provided.

    Defective will drafting

    • Claims to void will or a provision within it due to poor drafting of the will

    Sometimes beneficiaries do not receive what they were expecting or what the deceased intended because of the way a will was drafted or a technical error of expression.

    Executors should exercise caution where there is ambiguity as to the description for any particular bequest, especially jewellery and objets d’art.

    Failure to specify in a will that the rule of ademption does not apply may lead to disputes concerning the unintended consequences of an inter vivos disposal.

What fees can i expect to pay?

If you are a claimant you are responsible for paying your own legal fees.  The fees for our services may vary case to case based on different circumstances. The best way to get an accurate quote is to contact us

What fees can i expect to pay?

If you are a claimant you are responsible for paying your own legal fees.  The fees for our services may vary case to case based on different circumstances. The best way to get an accurate quote is to contact us

What if I live interstate?

Each will is subject to the state in which it was made. It does not matter if you reside elsewhere, it will be processed in the state in which it was created.

What are you waiting for? Let’s get in contact