Family Law

How to Challenge a Will

Challenging a Will

A Will is a legal document that outlines your wishes with regard to how you would like your property and assets to be distributed once you die. If you die without a Will, your wishes may not be followed. In fact, even with a Will in place, there is the ability for people to contend what is contained in a Will. In this blog we cover when and how a Will can be contested.

When can you challenge a Will?

If you have been left out of a Will, there are some time-sensitive actions you should take to at least clarify what has happened and, in some cases, you may be able to contest it.

In Queensland, it is legal to challenge what is contained in a Will after a person dies for the following three reasons:

  • They did not have the capacity to make a Will at the time they signed it;
  • They made the Will under the influence of others; and
  • The claimant believes they are entitled to more from the deceased’s estate than they received.

Proving coercion, diminished mental capacity or outright fraud can sometimes lead to the terms of a will to be dismissed. With that being said, it’s no easy feat to successfully challenge a Will. You need to be prepared to face an uphill battle to get a portion of the estate.

What do you need to do to challenge a Will?

You should always be sure that the effort and cost to contest a Will is going to be financially worthwhile and that you have a legitimate claim to bring forward. To ensure that you have a legitimate claim to the estate, it is important to have a frank conversation with a lawyer that is knowledgeable in the field to figure out the position that you are in. Even though being left out of a Will is not a nice situation to be in, wasting time, money and emotions fighting a losing battle could have a much less pleasant ending for you. It is important to be realistic. You cannot contest a Will simply because you do not like or agree with the terms listed in it.

Once again, you seek legal advice on how realistic your chances are of contesting a Will are before putting any wheels in motion. It is also important to listen to, and respect, the advice of your lawyer as they are the ones with experience. Your lawyer will give you advice on how to proceed.

If you have sufficient grounds to challenge the Will, your lawyer will file a contest. The overall objective of this is to invalidate the current Will and enforce a previous Will that has you listed as a beneficiary on it.

Before you get started, be sure that contesting the Will makes emotional sense; the process is often long and stressful, especially given the nature of it involving a loved one’s death. There is no point prolonging a difficult period if the chances of a succession contestation is slim.

Client meeting with estate litigation lawyer to discuss Will
Client meeting with estate litigation lawyer to discuss Will

Time limitations to challenge a Will

If your lawyer believes you have sufficient ground to proceed, you need to give written notice that you intend on contesting the Will within six months of the date of death to the executor. Once a grant of probate is obtained by the executor (usually six months after death), they are able to carry out the testator’s instructions under the Will and there could be no estate assets left to claim against.

More information Wills

Challenging a Will is not simple and can be an uphill battle at times, and that’s why you need the right team by your side. Our team of estate litigation lawyers can support you through the process and help you fight for what is rightfully yours. Contact us for a free consultation.

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