When a loved one passes away, the distribution of their assets is governed by a will, if one exists. However, not all wills are accepted at face value, and in some instances, there may be grounds to contest them. In Australia, the legal framework for contesting a will is both robust and intricate, providing protections for beneficiaries while ensuring the last wishes of the deceased are respected.
Why Contest a Will in Australia?
Contesting a will is not undertaken lightly. It’s often emotionally charged and can lead to division among family members.
Some family members may feel they have not been adequately provided for or were unfairly excluded.
Claims may arise suggesting that the will was made under the influence of another individual, manipulating the deceased’s decisions.
Questioning Testamentary Capacity
Doubts about the deceased’s mental capacity at the time of writing the will can provide grounds to contest it.
This pertains to issues in how the will was drafted or witnessed, potentially invalidating the document.
Understanding the Process of Contesting a Will
Before contesting a will in Australia, it’s essential to establish if you’re an eligible person. Typically, this includes the deceased’s spouse, children, and sometimes dependents who had a close relationship with the deceased.
As mentioned earlier, reasons could be undue influence, lack of testamentary capacity, or procedural discrepancies. In some Australian states, “not being adequately provided for” is also a legitimate ground.
There is a limited period during which a will can be contested. In many Australian states, you have six months from the grant of probate to file a claim, though this can vary. It’s crucial to act promptly.
Seeking Legal Counsel
Due to the complexities involved, seeking advice from a solicitor with expertise in estate disputes is vital. They can guide you on the viability of your claim and the best approach.
Alternative Dispute Resolution (ADR)
Before going to court, many disputes can be resolved through mediation or other ADR methods, which can be both time-saving and cost-effective.
If ADR does not resolve the matter, you may need to proceed to court. This process can be long and emotionally draining, requiring presentation of evidence, potential witnesses, and expert testimonies.
When contesting a will, the court can:
Uphold the Existing Will
In which case, the estate will be distributed as per the original will.
Amend the Will
This is a partial change, often to provide more for the individual contesting.
Invalidate the Will
In rare cases, where the will is found to be entirely invalid (due to fraud, undue influence, or procedural discrepancies), the court might resort to using a previous will or, in the absence of one, the rules of intestacy.
The Role of Executors
Executors play a crucial role in the process. They are responsible for defending the will on behalf of the deceased. They must remain neutral, ensuring the true wishes of the deceased are upheld, even if they personally disagree with the distribution.
Contesting a will comes with inherent risks:
Going to court is expensive. If the contest is unsuccessful, the claimant might be ordered to pay the legal costs of both sides.
Contesting can strain familial relationships, potentially causing long-lasting rifts.
It can be a long process, sometimes taking years to resolve, which can be emotionally and mentally taxing.
Contesting a will in Australia is a significant decision requiring careful thought and consultation. The legal system aims to balance the deceased’s wishes with the rights of potential beneficiaries, ensuring that justice is served. Anyone considering contesting a will should be aware of the emotional, financial, and time-related costs, seeking expert advice to make informed decisions. Ultimately, it’s about ensuring the deceased’s true intentions are honored while providing a fair outcome for those left behind.