While a person who makes a Will has a right to dispose of their property as they see fit, they still have a responsibility to care for their family financially. Even though courts are very wary of changing a Will, it can be done in certain circumstances or when specific criteria come into play. Here are some of the reasons that a court will allow contesting of a Will.
- If the Will was not properly written or if it seems that it may have been tampered with.
- If the Will was found to be an old one and another one is the latest version.
- If the person who made the Will was wrongly influenced by another person.
- If the Will maker lacked mental capacity at the time of making the Will.
- If the Will did not make proper provision to the family.
- If the meaning of the Will is unclear
If you know of any of the above happening, you need to contact your lawyer immediately to have the matter looked into. However, in the case of the Will not making proper provision for the family, it would be quite clear if this was the case and so all that remains is to inform the wills lawyer what you want done.
As usual, the differing states have differing requirements and one of these is the time limit for contesting the Will. In NSW this is 12 months, In Queensland 9 months and in Victoria you only get 6 months grace. Other states may also vary so it is necessary to do your research to find out the time limit.
The first step is to contact your lawyer who will appraise the Will and tell you whether you have a good claim that is likely to be successful. As a guideline, the following will need to be considered:
- Are you a spouse, natural born child, member of the household or someone that was dependent on the deceased?
- Do you have financial need which can be proven?
- Did you have a good relationship with the deceased?
- Do the needs of other beneficiaries outweigh your own?
- Is the size of the estate worth the cost of contesting the Will?
If your lawyers believe you have a good chance of winning your claim, they will contact the executors of the estate in order to inform them of it. In some cases the claim can be resolved at this stage. If not the lawyers must prepared documents to support your claim and if it still cannot be resolved outside of the judicial system, will take it to court on your behalf. You don’t usually have to appear at court, but you can be there if you want to.