While people make a will so that their assets and affairs are handled in an orderly fashion after their death, this ideal scenario does not always play out.
There are a couple of common reasons why an interested party may challenge or contest the terms of the deceased’s will. The first is that they query the validity of the will, and the second is that they do not believe they have been adequately provided for in the will.
Wills and estates can be a complex area of the law and the guidance of a professional lawyer in this area is crucial if you wish to challenge a will on either of the grounds above. In this article we’ll provide an overview of the grounds for challenging a will but do contact Twohill Lawyers if you need more detail on this subject.
Questioning the validity of a will
There are a number of circumstances in which a person’s will may be invalid. These include:
- Where a person contends that the will is not the final will of the testator (will-maker);
- where the will was revoked by the testator;
- where the testator lacked mental capacity to make a will;
- where it’s claimed that alterations or additions were made to the will after it was signed by the testator.
In applying to the court for a Grant of Probate – which the will’s executor must obtain before being able to distribute the estate to the beneficiaries – the executor must attest to, and the court must be satisfied of, the validity of the will.
This means someone who wishes to contest the validity of the will must notify the executor as soon as possible after the deceased’s death and before the executor obtains a Grant of Probate from the court.
One way to do this if the executor is not required to give you notification that they are applying for the Grant of Probate is to lodge a caveat against the estate. By doing this an executor is forced to undertake contested proceedings for the Grant of Probate and the court must decide the validity of the will by fully investigating any of the circumstances listed above.
A court can refuse the Grant or revoke an existing grant if they find the will is invalid.
Family Provision Applications
Where a person believes the testator has failed to make adequate provision for their needs from the will – in layperson’s terms, they didn’t get the share they felt was owed to them – then an eligible person can make a Family Provision Application (FPA).
In order to make an FPA you must be classified as an eligible person. This includes a spouse, child or a dependant of the deceased person. ‘Spouse’ includes a husband or wife, de facto partner, a dependant former husband or wife, or civil partner. A child of the deceased encompasses natural children, stepchildren and adopted children, while a ‘dependant’ includes any person who was wholly or substantially maintained or supported by the deceased at the time of his or her death and who is: a parent of the deceased; or the parent of a surviving child under the age of 18 years of that deceased person; or a person under the age of 18 years.
If you are assessed as eligible, an FPA requires you to give evidence as to your income, assets, liabilities and expenditure, as well as any medical, educational and lifestyle needs.
The court will also consider whether you have engaged in any disentitling conduct (such as drug and alcohol abuse, or criminal conduct, for e.g.) which justified the will-maker’s decision about what they left – or didn’t leave – to you in the will.
If the evidence supports your contention that the will inadequately provided for you as a beneficiary, the court will also take into account the size of the estate and the needs of the other beneficiaries of the estate in determining your provision from the estate, which it could order paid as a lump sum payment or a period payment such as an annuity.
Contesting on the grounds of what the words in the will mean
One further ground for contesting a will may arise where the terms of the will are unclear. This can happen where, for example, a testator makes a gift to “my niece, Julie” when in fact, the deceased had more than one niece called Julie.
In these situations, the executor or a person interested in the estate can ask the court to make a decision on the specific meaning of the terms in the will. These applications must be made within six months of the date of death of the testator.
Speak with the professionals
In most of the situations described above, statutory time limits exist within which a person who wishes to contest a will must make an application. As mentioned, the administrative work involved in challenging a will on any of the grounds above can be complex and time-consuming. By calling Twohill Lawyers today on (07) 5562-0444 for an initial free consultation, we can help assess your case and give you a firm idea of your chances of success in contesting a will.