Losing a family member or someone close to you is an emotionally difficult experience, and it can be made even more so if you have been left out of a Will or feel that your share is unfair. Family lawyers at The Norton Law Group can help you through this challenging time.
Contesting a Will is entirely possible, but it is important to know what to expect during the process. This article outlines everything you need to know.
Legal reasons why a will may be challenged
There are three legal reasons why the validity of a Will might be contested following a person’s death:
- The testator lacked the capacity to create a Will at the time of signing.
- The Will was made under the influence of others.
- The person contesting the Will believes they are entitled to a greater amount of the deceased’s estate than they were given.
Ensure that you seek legal advice as soon as possible following the death of your loved one, as you may have a limited amount of time to contest the Will.
Types of claims you can make
Here are the five most common claims made when contesting a Will:
Testator’s family maintenance
This is the most common claim, which is often made by step-children and de facto partners. It is made when the Will is valid, but a dependent believes that the testator did not adequately provide for them (as is legally required).
Breach of trust
A beneficiary can request for the Court to remove a trustee or executor on the grounds that they have failed to administer a Will properly. They may also request compensation for any financial losses sustained as a result of these wrongdoings. An example of a breach of trust is when an executor keeps some of the money for themselves in secret.
Lack of capacity
A beneficiary may also challenge a Will if they think the testator lacked the capacity to understand the moral obligations of signing it (e.g. how their decision would impact family members). However, proof of this lack of knowledge is required to make this claim.
A claim may be made if a benefactor believes the testator was unduly influenced to sign a Will which they did not genuinely want to sign. However, this can be highly difficult to prove since the testator has passed on and cannot provide information.
Why use a lawyer for a contested will
Contesting a Will can be a lengthy, complex and emotionally challenging process. Having a lawyer on your side can help you understand your legal rights, the viability of your claim, and the best course of action. Legal aid can improve your chances of having a successful claim, especially if your solicitor is experienced in the field.
The process of contesting a Will has the potential to be an emotional rollercoaster for everyone involved. Try to treat the situation as a business one, as sharing deep-seated emotional wounds in court is unlikely to be helpful (consider expressing your emotions in therapy instead). Using a lawyer to assist you can be hugely beneficial.