Will Disputes

How Can I Contest an Unfair Will?

Many of us are hit by unfair or an unexpectedly small inheritance from a loved one’s estate and wonder whether we should contest the Will in court.

Unfortunately, a Will can ruin a lifelong relationship and reduce it to just a sum of money and personal belongings. We are rarely prepared for such an emotionally stressful time.

Everyone has the right to decide who will inherit their assets after they die, and this is done through creating a Will. Thankfully, there are laws in place that are designed to help protect families who have received an unfair entitlement in a Will.

Do you believe you have been treated unfairly in a Will and wondering how can I contest a Will? Schreuders have put together a list of information to help outline your rights and the procedures involved in challenging an unfair Will.

Who Can Challenge an Unfair Will?

If you belong in any of the following categories listed below you may be able to contest or challenge a Will and make a claim on a deceased estate:

  • A partner of the deceased person at the time of the deceased’s death. This could be a husband, wife or a de facto partner including partners of the same sex
  • A former wife, husband or partner of the deceased person
  • A child of the deceased person including children born outside of the marriage or de facto relationship
  • Family members of the deceased person who at any point in time were dependant of the deceased
  • A grandchild of the deceased person who at any point of time was dependent on the deceased
  • Any person who, at the time of the deceased person’s death, was living in a close personal relationship with the deceased.

Contesting a Will is not limited to close relatives, partners or children of the deceased. Usually, the eligibility of a husband, wife, de facto or child to make the claim is not disputed. Others making a claim must meet certain statutory criteria before they can proceed with the claim process.

You can also challenge an unfair will because it does not adequately provide for you. Anyone who had a close and significant relationship with the deceased may be eligible to contest the arrangements of a Will.

man-figuring-out-things

How Can I Contest an Unfair Will?

If you are hoping to contest a Will on the basis that you believe you deserve more, or because you did not receive a particular asset that you have been told you would receive, you are likely to run into difficulty. You can only challenge an unfair Will for specific cases.

The first steps to contesting a Will and making a Will disputes claim for a deceased estate is to obtain legal advice in relation to your particular case. At Schreuders, our lawyers will assess your case to provide you with precise and accurate legal advice.

Relevant Factors to Consider when Contesting a Will

There are a number of important factors the court will consider when dealing with a Will dispute claim. If you initiate Will dispute proceedings, the court will consider the following issues:

  • The nature and duration of your relationship with the deceased
  • The size and value of the deceased estate
  • Your personal financial circumstances and needs
  • The financial circumstances and needs of other beneficiaries in the estate
  • Whether you have made any contributions to the deceased estate.

When Can a Will be Challenged?

The grounds for contesting a Will are similar across all states in Australia and can be done if the following circumstances have occurred:

  • The Will was not properly executed or there was evidence of interference in the execution of the Will
  • The Will was not the final version chosen by the deceased
  • The Will was retracted by the deceased before their death
  • The Will maker received undue influence or was manipulated into creating a Will by another person
  • The deceased was not aware of or did not approve the content of the Will
  • The Will was not signed by the deceased
  • The Will maker lacked sufficient mental capacity or the understanding to create another Will
  • Adequate provisions were not made to family members.

If you believe you have not been sufficiently provided for and are considering challenging an unfair Will, contact Schreuders and you may be entitled to claim part of their estate. Find out today if you are eligible to make a Will dispute claim.

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