Even though the law recognises a person's right to choose who will inherit his or her property, there are often very good reasons why a person should be contesting a will. The law in most states, for example, allows family members, de facto and same-sex partners, or anyone else who can show they were financially dependant on the deceased, to challenge a will if they believe the will to be unfair.
You can also contest a will if it can be shown that the deceased did not have the mental capacity to understand what he or she was signing or if they were influenced to sign a will that did not reflect his or her wishes. If you want to contest a will, Slater & Gordon strongly recommends that you seek prompt legal advice to ensure that your entitlements are fully protected.
If you are named or appointed the executor of an estate, you may receive notice by a claimant of their intention to disputing a will. If this happens, it is important that you seek legal advice immediately.
That is where Slater & Gordon can help. Our experienced team of wills, probate and estate litigation lawyers will work with you to assess the relevant issues and advise you frankly of the legal options and avenues available to resolve your circumstances.
What legal avenues are available to dispute a will?
- Testator family maintenance claims
A person who has been left out of a will or unfairly provided for, can challenging a will by making a claim for a larger share of a deceased person's estate.
- Lack of testamentary capacity claim
A beneficiary under an earlier will can challenge a will that is more recent if the deceased person did not have the mental capacity to understand what he or she was signing.
- Undue influence claim
A beneficiary under an earlier will can also challenge a will that is more recent if the deceased person was 'unduly influenced' by another person to sign a will that did not reflect that person's true wishes.
- Breach of trust claim
A beneficiary under a will or trust can dispute a will by applying to the court to remove an executor or trustee who fails to administer a will or trust properly. The beneficiary can also seek compensation if he or she suffers financial loss as a result of the executor or trustee's wrongdoing.
- Powers of attorney
Family members or concerned friends can apply to the relevant court, board or tribunal in each state (for example, the Victorian Civil and Administrative Tribunal) for the revocation of a Power of Attorney that is being misused.
- Guardianship and administration
Family members or concerned friends can apply to the relevant court, board or tribunal in each state (for example, the Victorian Civil and Administrative Tribunal) for an order allowing them to manage the financial affairs of a mentally incompetent person or to make decisions about his or her welfare.
Is there a time limit?
It is essential that you obtain prompt legal advice about these legal issues as there are strict time limits to make these claims. The time limit that applies to your type of claim will vary from state to state.
How will I pay my legal fees?
Slater & Gordon's No Win - No Fee scheme is usually available for will dispute claims. The scheme is designed to help those whose financial circumstances might otherwise deny them access to legal representation.
Talk to us
If you are involved in a will or probate dispute and would like more information about how we can help you, please contact us either by submitting an online enquiry or by calling direct on 1800 555 777.