When and How To Contest A Will
If you have been left out of a will, or feel that you have not received your fair share of an estate, there is a range of options to contest the viability of the will.
In Victoria, there are a range of ‘grounds’ on which a will can be challenged or contested including:
- The will is not an accurate reflection of the person’s true intentions
- The will is grossly unfair. It excludes those who are dependent on the deceased or someone who has been provided for shouldn’t be.
- Undue influence. This implies the person who assisted in the drawing up the will, gains significantly from the will.
How Are Most Wills Contested?
Most wills in Victoria are contested on the basis that the person who made the will had a ‘moral duty’ to provide for them, and did not appear to do so in the will. Generally the person who wants to make a claim has to be closely related to the person who died, such as:
- A spouse or domestic partner (or former partner eligible to apply to court for a property settlement); or
- A parent, child or stepchild, or someone treated as a child by the will-maker.
Wills can also be challenged on the basis that the willmaker lacked the requisite testamentary capacity to understand the nature of their actions. Further, that the will-maker was not acting freely when they gave instructions to draft their will, either by being victim of fraud or undue influence. Some people have used their positions of power, influence or authority to persuade willmakers to leave assets to them, rather than family members.
There are also examples of forgery.
Other types of Will disputes
Other common will disputes can be about:
- Beneficiaries not believing they have received their ‘fair share’ of the assets, or not all beneficiaries are included;
- about executors or trustees;
- disputes about the administration of the estate, including excessive costs;
- clarifying the meaning of a particular clause; or
- alleged delays in proving the Will to the Supreme Court of Victoria
Unknowns When Contesting A Will
Contesting a will can be a stressful and sensitive process, so having a lawyer work with you is recommended. There may be a wide range of unknowns that are brought up, such as:
- extramarital affairs
- secret children
- unknown activities of a person
All of which may come to light in the case of a will being challenged.
With such a sensitive area, you and your loved ones need lawyers that understand the law and have the experience and empathy to manage your particular situation, while always looking to get the best for you as our clients.
McClure Law are known in Victoria as a law firm with a difference and are here for all your will and estate needs. To find our more about contesting a will or for a wide range of legal support that covers all areas of law in Victoria, contact us today. Be quick as time limits do apply.