Posted on 23 Mar. 2014
How do I challenge a Will if it hasn't been properly made?
By Slater and Gordon
You have the right to challenge a Will if you feel there are doubts about its integrity and validity.
Your right to challenge a Will is very different to contesting the contents of a Will. Instead of focusing on how a deceased’s estate is distributed, you are questioning the entire validity of the Will and the circumstances in which it was prepared.
There are a number of different circumstances as to why someone may feel there is reason to challenge a Will.
- Mental capacity
The deceased mental capacity at the time of making the Will is an important factor in determining its validity. A person may challenge a Will if the deceased did not have the necessary mental capacity to properly understand the meaning and effect of the Will. This may happen in circumstances of illness such as the onset of Alzheimer’s disease, or circumstances of mental impairment brought on by a particular disability.
- Influence of another person
There may also be reason to challenge a Will if it was prepared under the improper or undue influence of another person. For example, any beneficiary from a relative, friend, business associate or neighbour may have pressured the deceased to prepare the will and sign it. In such situations the Will would not have been drafted under the free will of the deceased.
If no Will was left, laws made by the Government known as ‘rules of intestacy’ are used to decide how a deceased person’s estate should be distributed. This formula may not be fair in your circumstances.
If you want to challenge a Will, we strongly recommend that you seek prompt legal advice to ensure that your entitlements are fully protected as time limits apply.
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