How to successfully dispute a will

Disputing or challenging a will is a legal process that may be necessary if you feel you have been unfairly excluded or short-changed by a last will and testament. Last testaments are often hotly contested areas of the law because of the emotional factors surrounding the death of a loved one.

If you have decided that contesting a will is your best course of action, then consider the following tips before you make your challenge. It’s advisable that you work with an experienced estate lawyer in pursuing the dispute.

Collect the right evidence

Getting ideal results means gathering ideal evidence. Identifying the best evidence is a skill that can only be developed over years of dealing with these cases, which makes having an experienced lawyer all the more important.

Even with a lawyer, many Judges will criticise the claimant for presenting evidence that is not helpful deciding a dispute. This is why it is important to collect the right evidence that actually addresses the issue at hand.

Often the best evidence will be factual information about the deceased person’s mental capacity at the time they wrote their last testament or about what a reasonable person should have done at the time. It’s important not to become distracted with information regarding your relationship with the primary beneficiaries.

Settle with negotiation

This means that you settle the dispute out of court, a process which is preferred by the court system. It’s important however to make sure you compare your evidence against what you are getting from a negotiation.

It’s important to go over the facts with your lawyer to determine what the best settlement outcome would be and pursue it. If you cannot negotiate the fair amount then you must decide if it’s worth taking the best offer or taking your chances in court.

Affidavit evidence

Naturally, you will want your affidavit evidence to get accepted by the court and not torn apart by objections from the opposition. When writing your affidavit you need to predict what will draw objections from the opposing barrister upon cross examination.

A good affidavit will draw few to no objections. A bad affidavit will draw many objections and will be altered by the judge by deleting words, paragraphs or entire pages.

Legal expenses

The legal costs of conducting wills and estates cases can range anywhere from $2000 to $200,000. Many times the costs will be paid out of the estate which reduces the total payout you end up with should you win.

It’s best to make sure you understand what the cost of disputing the document is going to be and adjust your expectations accordingly. If the estate is small it may not be worth pursuing a legal challenge.

Christian Woods
Christian Woods
Christian is a morning reporter and technology columnist for Best in Australia. Christian has worked in the media since 2000, in a range of locations. He joined Best in Australia in 2018, and began working in Melbourne in 2019.
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