Challenging or Contesting a Will

We have previously spoken about the importance of having a valid legal Will in the event of your death. 

A Will is a written document which clearly spells out what is to happen to your assets in the event of your death and any other special provisions that you may wish to make.  The whole idea of making a Will is that you can give away your property and assets in any manner you see fit.

Despite that, it is possible for your Will to be challenged.  Certain family members or a person who shared a close personal relationship with you and who may be left out of the Will as a Beneficiary, can make an Application to the Court to contest the Will. 

The Succession Act 1981 (the Act) provides the basis on which a challenge can be mounted.

The persons who may have a right to challenge your Will and apply for a portion of your estate are:
-Your spouse
-A child, including a step-child or adopted child
-A dependent

The Act defines that a spouse includes a de facto spouse as well as a divorced spouse who has not remarried before the death of the deceased and if that person was receiving or was entitled to receive maintenance from the deceased at the time of deceased’s death.

The Act also defines who qualifies as a child and a dependent of the deceased.

A Will can be challenged for a number of reasons.  Generally, the grounds for contesting a Will are as follows:

-The deceased (the Will maker) lacked sufficient mental capacity or the understanding required to draw up a Will at the time of making the Will
-The Will maker was improperly influenced (or tricked) into creating a Will by another person i.e. the Will was made under duress and under the influence of another person
-The Will was not the last one drawn up by the Will Maker (i.e. there is a later Will)The Will was not properly executed or there was evidence of tampering; and
-More commonly where someone who says that the Will Maker owes them a moral duty to provide for them via the Will, feels that the Will Maker has not made proper, fair and adequate provision for them in the Will.

Contesting a Will can be a very difficult decision. When someone close to you dies it is always a difficult time.  The Court proceedings associated with contesting a Will can be very stressful and very emotional and can have the effect of tearing families apart.

In an Application to the Court, the Court will usually look at the size of the estate, along with the particular circumstances of the case, which of course can vary substantially from case to case.

There are many factors that a Court takes into account when deciding if the family member who has been left out of a Will should be eligible for a portion of the estate. The Court proceedings can be very complicated and involved.

Challenging a Will is not a course of action that should be taken lightly.  Any person who decides to contest a Will should seek legal advice at all times.

In Queensland, any application must be made within 9 months after the death of the Will maker.

If you wish to challenge the terms of a Will, you should contact us to seek legal advice as soon as possible after the death of the Will maker.

The best way for a Will maker to try to ensure that a challenge to a Will is not successful is to have the Will prepared by a solicitor and we can assist you in this regard.


Greg Michel
Director
Macdonald & Michel Solicitors 
http://www.macdonaldmichel.com.au
07 4972 3644

Greg is a Solicitor of the Supreme Court of Queensland and the High Court of Australia. Greg specialises in domestic and commercial conveyancing, business and Commercial law, leasing, Estate administration including Probates and Intestacy, Wills and Powers of Attorney, employment law and industrial relations.

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