Contesting a will can be a complicated and emotional process. If you’re worried that a will does not accurately represent your loved one’s true wishes or believe your rights as a beneficiary have been neglected, it’s important to understand the process of contesting a will in Australia This guide will outline the legal grounds for contesting a will, the steps to take when challenging a will in court, and the importance of obtaining expert legal advice if you’re thinking of pursuing this option.
What are the Legal Grounds for Challenging a Will?
In Australia, there are various legal grounds for contesting a will. Knowing these grounds can help you evaluate if you have a valid reason to challenge the will.
| Ground for Contesting | Description | Examples of Evidence | Legal Process |
| Undue Influence | When the testator (person who made the will) was coerced or manipulated to make decisions they otherwise would not have made. | Testimony of witnesses, medical records showing a decline in mental state, evidence of coercion or pressure. | File a claim in court; prove that the testator was influenced in making the will. |
| Lack of Testamentary Capacity | When the testator did not understand the nature of the will, the extent of their assets, or the people they should have provided for. | Medical records, expert opinions on the mental state of the testator, testimonies from family members or carers. | File an application for the will to be overturned based on mental capacity. |
| Family Provision Claims | When a person who is eligible (like a spouse or child) claims that the will did not adequately provide for them. | Evidence of financial dependence on the deceased, proof of relationship, arguments based on moral obligation. | File a claim under the Family Provision Act within a specific time frame (usually 12 months after death). |
| Fraud or Forgery | When the will has been forged or falsely altered, or the testator was deceived about the contents of the will. | Expert analysis, handwriting analysis, witness statements, evidence of tampered documents. | File a court claim disputing the validity of the will and showing evidence of fraud. |
| Improper Execution | When the will wasn’t signed according to legal formalities, such as not having the proper witnesses or signatures. | Testimony from witnesses, proof that legal requirements weren’t met. | Seek a court order declaring the will invalid due to non-compliance with legal execution rules. |
Steps to Contest a Will in Australia
Contesting a will is a legal process that typically requires court involvement, and it’s important to approach it with the guidance of a qualified solicitor. Below is an outline of the typical steps involved in challenging a will.
Step 1: Determine if You Have Standing
Before you can contest a will, you must establish that you have standing—that is, a legal interest in the will’s provisions. The following people are typically eligible to contest a will:
- Spouses and partners (both de facto and married)
- Children and stepchildren
- Dependents or those financially supported by the deceased
- In some cases, people who were excluded from the will but who can demonstrate that the deceased had a moral obligation to provide for them (e.g., close friends or carers).
Step 2: Seek Legal Advice
Contesting a will can be emotionally taxing and legally complex. It’s crucial to consult with a solicitor experienced in will disputes as early as possible. A lawyer can assess the strength of your case, explain your legal options, and help guide you through the process.
Step 3: Attempt to Resolve the Dispute Out of Court
Many will disputes are resolved through negotiation, mediation, or settlement before a formal court hearing is required. A solicitor can assist in facilitating a conversation between all parties to come to an agreement without having to go to court.
Step 4: File an Application with the Court
If an out-of-court resolution is not possible, the next step is to file an application with the court. The Family Provision Act or Supreme Court of the relevant state or territory is the forum where such disputes are heard. Time limits for filing a family provision claim can be strict, so it’s important to act quickly. In most states, you typically have 12 months from the date of death to contest a will, but this can vary.
Step 5: Present Your Case
Once your application has been filed, the matter will proceed to a court hearing. Your solicitor will present evidence supporting your case, which could include medical records, witness testimonies, and documents proving your relationship to the deceased, among other things. The court will ultimately decide whether to overturn the will or to adjust the provisions.
Step 6: Court Decision
After considering all the evidence, the court will decide. The court can either uphold the original will or make changes to the distribution of assets. In family provision claims, the court will determine whether the deceased’s estate is to be distributed differently to meet the claimant’s needs or moral entitlement.
The Importance of Legal Representation in Will Disputes
Contesting a will is not a straightforward process. Legal proceedings can be lengthy, emotionally draining, and costly, which is why having expert legal representation is essential. A skilled solicitor can help:
- Assess the merit of your case: Determining whether you have grounds to contest a will and ensuring you meet the legal requirements.
- Handle the negotiation process: Attempting to resolve the issue out of court can save you time, legal fees, and stress.
- Navigate the complexities of the legal system: The court process can be overwhelming without proper guidance, and a solicitor will help you comply with all deadlines, document submissions, and court hearings.
- Maximise your chances of success: With expert legal advice, you will better understand the strengths and weaknesses of your case, increasing your chances of achieving a favourable outcome
Why Choose Golottas Solicitors, Barristers & Conveyancers for Your Will Contest?
At Golottas Solicitors, Barristers & Conveyancers, we understand the emotional and financial stress that comes with contesting a will. Our experienced solicitors have a deep understanding of will disputes in Australia, and we can offer compassionate yet strong legal representation to help you achieve the best possible outcome.
Whether you are challenging a will on the grounds of undue influence, lack of testamentary capacity, or making a family provision claim, our team is here to guide you through the process with confidence and care. Contact us today to discuss your case with one of our expert lawyers.
