Can You Contest A Will If You Think It’s Unfair?

There can often be a lot of confusion around the legalities of wills. If you believe a will is unfair, does that give you the right to contest it? Is it possible to contest a will at all?

Sadly, unfair wills can be all too common. So it’s important to know the legal frameworks in place that can potentially help in challenging a will

What are your rights in challenging a will?

You do have the rights to challenge a will if you feel it is unfair. However, there are limitations to the availability of these challenges. The key requirement being that written notice of the challenge must be given within six (6) months of the date of death, and legal action must have commenced within nine (9) months.

What legal principles exist around challenging a will?

433441 Simply stating that an ‘unfair will’ was written isn’t a legally recognised principle. However, there are legally recognised grounds that would allow you to challenge a will. These include:

  1. Ensuring all family members and dependants have been adequately provided for
  2. The legal requirements of forming the will weren’t strictly observed
  3. The will wasn’t a fair reflection of the will maker’s true intentions of their testamentary
  4. There was undue influence by another party as the will was written
  5. Any provisions supplied in the will don’t match the intention of that provision.

If someone were to leave behind what they thought was a treasured piece of jewellery, but accidentally described or listed an item with lesser emotional or financial value, the provision wouldn’t match the intentions held behind it.

For greater detail on the processes and grounds to legally challenge an unfair will, read more on our Contesting a Will page.

How do I use these frameworks to challenge the will?

959816Each different situation will warrant a different set of actions, and different points of consideration from the courts. For example, in the event that a challenge is made to ensure all family members are fairly provided for, the courts will consider the size of the estate, the relationships between the deceased and their dependents, and plenty more variables.

However, if a challenge is made on the grounds that the will maker didn’t have full capacity to write a fair will at the time of writing, the courts will consider a separate set of variables. In this case, they would investigate the mental health of the person at the time of writing the will.
The best way to gauge what points will need to be proven is to speak to a professional. The team at Qld Estate Lawyers take the time to understand your situation, and will know in advance what points will need to be proven in court to contest an unfair will.

Case Study: The Forgotten Daughter

This case concerns a middle-aged daughter, whose father had separated from her mother at a young age. Not too long after, he remarries.

Twenty-five years after remarrying, he tragically passes away suddenly.

At the time of his passing, all of his assets were jointly owned with his second wife. The will was written to leave everything to his wife, and in the event she passed away first, to his children. But as she was shared owner of the assets, the terms of the will were effectively inoperative.

The daughter had maintained contact with her father on a semi-regular basis, as she primarily lived overseas. However, she was able to argue the will was unfair, and the matter was resolved with a payment made to the daughter.

We’ll help in the event of an unfair will

If the worst should happen, you can rest assured a fair and reasonable solution will be fought for. For a free, no-commitment chat with an expert in challenging a will, chat to a member of the Qld Estate Lawyers team online, or at 1300 580 413.

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Last updated: 13 October 2021