Contesting Wills

If you have been left out of a Will or if you believe the bequest which you have received is inadequate, give Anthonys Solicitors a call now.

Quite often a bequest made in a Will for whatever reason does not accurately reflect the relationship which you had with the deceased. In some cases the deceased may have had a duty to financially provide for you, especially where there are children involved or where you have taken care of the deceased over a substantial period of time.

A Will can be challenged and declared invalid for one of more of the following reasons:

  • The testator lacked capacity at the time of executing the Will,
  • The testator was unduly influenced into making the Will,
  • The testator did not know or approve contents of the Will,
  • The Will was not executed correctly by the testator,
  • The Will that was executed was not the last Will of the testator,
  • The Will was made in suspicious circumstances or there is evidence or Will tampering.

If one of more of the above grounds are proved, a Court may exercise its discretion to declare a Will invalid. If the Will is declared to be invalid, then any previous Will of the deceased could be revived. If the deceased did not have a previous Will, then the estate will be distributed in accordance with the rules of intestacy under the relevant Act in each state.

Who can challenge a Will?

If the deceased died before 1st January 2015, you may be eligible to claim if you are:

  • A spouse
  • A child
  • An unmarried partner
  • A person who has been treated by the deceased as a child of the family
  • Close family members (any parent, siblings, grandchild)
  • Any other person who was financially depended on the deceased
  • Any other person whom he/she had a responsibility to provide for

If the deceased died after 1st January 2015, you may be eligible to claim if you are:

  • A spouse/domestic partner
  • An eligible child/step child under aged 25
  • An eligible person aged under 25 who was treated by the deceased as their child and who thought that the deceased was their parent
  • A former spouse/domestic partner. with an un-exercised or un-finalized family law rights
  • A child of a spouse/defacto partner whose parent died within 1 year of the deceased
  • An eligible member of the deceased’s household
  • A registered caring partner of the deceased
  • A grandchild of the deceased
  • An eligible child/step child of the deceased eg adult children/step children

For certain categories, but in particular adult children/step children, the amount that may be awarded by the court will be limited if you are unable to prove that you cannot provide sufficiently for yourself.

How much am I likely to get?

Each case is different, and many factors will determine how much the Court may order the estate to pay you. If you are successful, the Court will usually order the estate to pay an Award to you from the estate. The court may also order the Estate to reimburse you for a percentage of the legal fees that you must pay to your solicitor.

Do you need legal advice?

If you are going to contest a Will you should get legal advice. Not only do you need to establish whether you are eligible to contest the Will in the first place, but you also need to gauge how strong your claim is. If you contest the Will without first receiving legal advice and your claim is not successful, you could end up with a court order where you pay the costs of the trial and the other party. This could be in excess of $50,000.

What is mediation outside of the court system?

If the estate agrees, you can often have your claim settled at a Private Mediation, without a court hearing. A Private Mediation can reduce legal costs substantially and virtually remove any risk that you may have to pay the Estate’s legal costs if you were not successful. An independent mediator is appointed to act as a go between for the parties, and you can still have Anthonys Solicitors act as your lawyer in the mediation, to get the best possible result for you.

How to challenge the validity of a Will?

To challenge the validity of a Will, a caveat should be lodged with the Supreme Court, Probate Registry prior to a grant of Probate of Letters of Administration being made. You must have reasonable grounds to lodge a caveat, otherwise you can be ordered to pay the estate’s legal costs in having your caveat removed. We recommend that you contact our Lawyer to obtain further information so as to avoid incurring unnecessary costs and being out of time.

Can I still challenge the validity of a Will if a Grant of Representation has been made?

You can still challenge the validity of a Will even if the grant of Probate or Letters of Administration has been granted. However, doing so would be much more difficult than challenging prior to the grant. The grant would have to be revoked by the Supreme Court. You will also need to do so before the Assets are distributed.

What is testamentary capacity?

For a Will to be valid, the testator must have capacity at the time of making and executing the Will. This means that the testator must: Understand that they are making a Will, not suffering dementia or be under the influence of drugs.