Estate & Will Disputes
Margaret Arthur, who heads our Estate Litigation section, is very experienced in estate dispute matters, including challenging a will (or defending it), claims for inadequate provision in a will, arguments about the mental capacity of the testator when making a will and when the personal representative has failed to perform their duties. We are skilled in running difficult cases and bringing off very impressive results. We also understand that litigation can be stressful and intimidating and we actively discuss the emotional impact of the litigation
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What does contesting a will entail?
There are a number of reasons to contest a Will.
When a person makes a Will, it is their right to decide who inherits their assets after they die. But Australia also has laws to protect eligible people who have been left with little or nothing in a Will. Eligible people can bring what is called a ‘Family Provision Claim’.
Wills can also be contested where the person making the Will may not have known what they were doing. If the person who made the Will had dementia, memory difficulties, or delusional thoughts, or was acting under pressure from a third party, there may be good grounds to challenge the Will.
The laws surrounding Will disputes can be very complex. So it’s important to work with someone who is a specialist in Will disputes – and Margaret Arthur is an accredited specialist in Succession law.
If you have been left out of a Will or you feel that you haven’t been left enough, or if you think there may be reasons to question the validity of a Will, speak with us. You may be eligible to contest or challenge the Will.
Contact us today to talk to someone about your matter.
What are the different types of claims on Wills?
There are four main types of claims you can choose from when you want to contest a Will, including:
1. Family Maintenance
This is the most common type of claim. It’s where someone close to the person who died believes that they weren’t left enough, so they want a larger part of the estate.
2. Lack of capacity
If you were named as a beneficiary in a previous version of a Will, but were removed from the last version at a time when the Will-maker lacked capacity, you may be able to challenge the validity of the last Will.
3. Undue influence
The basis of this kind of claim is that the Will-maker was pressured into making a Will.
You must show that the deceased person was ‘unduly influenced’ by a person (or people) to sign a Will that wasn’t in line with their true wishes. It is on of the most difficult claims to succeed with.
4. Breach of trust
If you are a beneficiary of a Will and you believe the executor has failed at their job you can ask the court to remove them.
How to contest a Will
The most important part of contesting a Will is to get started early.
Strict time limits apply when you are making a claim so it’s important that you are well prepared before you make a claim. Generally, you have between 6 and 12 months (depending on which state you are in) following the date of death to lodge your claim.
If you are challenging the validity of a Will (e.g. for lack of capacity or undue influence), this claim must be brought before probate is granted.
Plus, if your claim is made late, there might end up being no estate to claim against if the executor finishes distributing the estate first.
There are two key areas you need to clarify with your lawyer before you can begin negotiating your settlement:
- Your eligibility
- Proof of claim