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

Wills are meant to reflect the true wishes of the person who made them (the testator), ensuring their assets are distributed fairly and their loved ones are cared for after they’re gone. However, what if you believe the will in question is unjust or doesn’t accurately represent the testator’s intentions? In many jurisdictions—including all Australian states and territories—you may have the right to contest or challenge a will, but success depends on having valid legal grounds and following the proper procedures.

Below, we explore when and why you might contest a will, what grounds typically apply, and what steps you can take if you think the distribution of an estate is unfair.

Understanding the Concept of “Unfair”

Personal feelings that a will is “unfair” aren’t enough on their own to mount a legal challenge. Laws don’t guarantee equal or “fair” shares to every family member. Testators generally have the freedom to leave their estate to whomever they choose, even if the distribution feels lopsided or disappointing. Instead, to contest a will successfully, you must demonstrate that it falls short of specific legal standards or fails to meet certain obligations.

Valid Grounds for Challenging a Will

While exact rules differ by state, common reasons for contesting a will include:

1. Lack of Testamentary Capacity:
If the testator was not of sound mind—due to illness, dementia, or any condition that impairs understanding—when they made or changed their will, a court may deem the document invalid. You would need evidence, such as medical records, to support this claim.

2. Undue Influence or Fraud:
If someone coerced, manipulated, or tricked the testator into signing a will that doesn’t reflect their true wishes, that will can be challenged. Proving undue influence requires showing that the testator’s free will was overpowered by another party’s pressure.

3. Improper Formalities:
Each state sets requirements for a valid will, such as the number of witnesses, their independence, and proper signing. If the will-maker failed to meet these formalities, the court may consider the will invalid.

4. Inadequate Provision for Eligible Family Members (Family Provision Claims):
In Australia, certain family members and dependants—such as spouses, children, and sometimes other close relatives who were financially dependent on the deceased—can seek additional provision from the estate if they believe the will does not provide for them adequately. This isn’t about claiming the will is invalid, but rather that it should be adjusted to ensure a fair share.

Who Can Contest a Will?

• Family Members and Dependants:
  Spouses, de facto partners, children (including adopted and stepchildren), and other dependants who believe they are entitled to more support may file a family provision claim.
• Those With a Legitimate Legal Interest:
  Individuals who suspect fraud, undue influence, or a lack of capacity may challenge a will’s validity if they stand to benefit from a different outcome (e.g., an earlier will that provided for them, or intestacy rules if the current will is overturned).

The Legal Process of Contesting a Will

1. Seek Professional Advice Early:
If you think a will is unfair, start by consulting a lawyer who specializes in wills and estates. They can assess the strength of your case, outline your rights, and guide you through the next steps.

2. Time Limits and Notices:
There are strict deadlines for lodging challenges. For family provision claims, you must typically notify your intention and file an application within a set number of months following the deceased’s death. Missing these deadlines can forfeit your right to contest.

3. Evidence Gathering:
To strengthen your case, gather relevant documents—such as medical records, earlier wills, financial statements, or correspondence—and consider witness statements from individuals who can speak to the testator’s state of mind or relationships.

4. Negotiation and Mediation:
Many will disputes resolve without a full court hearing. Parties often attempt mediation, where a neutral third party helps negotiate a settlement. This can save time, legal fees, and emotional strain.

5. Court Proceedings:
If mediation fails, the dispute moves to a court hearing. A judge reviews evidence, hears arguments, and decides the outcome, which may involve adjusting provisions, invalidating parts of the will, or dismissing the challenge.

Considering the Outcomes and Costs

Challenging a will can be expensive, time-consuming, and emotionally draining. Even if you win, the legal fees may reduce the estate’s overall value. Courts have discretion over costs, and sometimes expenses are shared among beneficiaries or taken from the estate.

If you lose, you may be responsible for your own legal costs and potentially some portion of the estate’s costs. Balancing the potential gain with the risk and expense is essential before proceeding.

Tips for Those Considering a Challenge

• Be Realistic:
  Understand that personal dissatisfaction with the will’s outcome may not meet legal grounds. Emotions matter, but courts require evidence and legal justification.
• Gather Information:
  The more prepared you are with facts and documents, the better your lawyer can advise you and present a strong case.
• Communicate:
  If appropriate, consider talking to other beneficiaries or family members. Sometimes misunderstandings can be cleared up or compromises reached without formal proceedings.

Final Thoughts

While you can contest a will you believe is unfair, success hinges on proving one of the established legal grounds—lack of capacity, undue influence, procedural failure, or insufficient provision for eligible dependants. Simply feeling overlooked isn’t enough.

If you do have legitimate grounds, seeking professional legal advice early is crucial. With the right guidance, evidence, and strategy, you stand the best chance of ensuring that the final outcome respects the testator’s true intentions and fairly meets the needs of those left behind.