Introduction
Whilst losing a family member can be an incredibly difficult time, too often people are faced with will disputes between surviving family members regarding the validity of the deceased’s will. It’s not easy to contest a will and can be expensive if you don’t go with a no win no fee lawyer.
We often come across families who have recently lost an elderly or vulnerable family member who had been pressured or even forced into changing their will before their passing.
There can be multiple factors that can come into play when investigating suspicious circumstances and the validity of a will.
Table of Contents
Main Grounds for Contesting a Will
Fortunately, we do have laws that allow us to dispute or contest a will and they fall under three main grounds:
- Lack of testamentary capacity;
- Knowledge and Approval of the contents of the will or “Suspicious circumstances”; and
- Undue influence and fraud.
Detailed Grounds for Contesting
Lack of Testamentary Capacity
One of the biggest disputes in this field is proving that the testator (the Will maker) had the mental capacity to provide instructions and create a new will.
Ensuring that there is no “disorder of the mind” which may influence the views of the testator is very important, the court will look to prove that the testator also understood the following:
- The significance of the act of law they are embarking on;
- The assets and value that they possessed at the time of making the will;
- How the assets are to be distributed amongst their family or loved ones; and
- The consequences of their actions in making the will.
When solicitors are involved in drafting a will it is their duty ensure that they abide instructions provided to them with the assistance of doctors and family members. However it is ultimately up to the court to decide if there was a mental capacity at the time of the will being drafted.
Suspicious Circumstances
If it is proven that the testator had the mental capacity to draft a will, there is also the factor of having testamentary intentions when doing so.
When investigating the possibility of challenging a will we also look at whether the testator knew and approved of the contents of the will when it was executed. Some red flags that we often look out for include:
- When there is an unexplained change of testamentary direction.
- When one beneficiary is left out of the will.
- When the testator has been potentially controlled or influenced by a favoured beneficiary.
- When the will was prepared by persons known to the beneficiaries rather than the Will maker.
- Suspicious conduct of the beneficiaries towards other parties after the will has been executed.
Undue Influence and Fraud
Unfortunately fraud and undue influence can become a factor in challenging the validity of a will. Essentially the court would have to find that the testator had been coerced into preparing their will against their own wishes.
There are sometimes clear examples of coercion or fraudulent behaviour such as bullying, physical harm, forging signatures and pretending to be the person signing the will, however in most scenarios this field can be incredibly difficult to prove as family dynamics and relationships can be incredibly complex.
How to Contest a Will
To contest a will, you will have to tell us a bit about your situation. This usually done in person or can be done over the phone. Usually we will have an experienced lawyer and barrister who you can talk to and get solid advice from.
The laws surrounding provision claims can be quite complex, and also a very emotionally draining process. If you have been considering contesting a will you should seek legal advice as soon as possible. Contact us now on 02 9299 1424 to find out your chances of a successful outcome.
Interested in how courts assess a claim in NSW? Read this – The Grounds For Challenging A Will by Chief Justice Geoff Lindsay
Frequently Asked Questions
It depends on how complicated the will is, and the jurisdiction because they all have different procedures. Out of court settlements are usually achieved after some six months in NSW and Victoria and two years in Qld.
It depends on how willing the parties are to settle out of court to save money on legal costs. However, most will contest cases are settled out of court which avoids the possibility of getting a judge who doesn’t view your case as deserving.
Some solicitors act for people from far afield and do most of the work on the phone, using facetime, emails etc. Mostly, however, people visit the solicitor’s office at least initially but it’s up to you if you don’t have the time or live far away and can’t afford to travel.
Costs depend on which lawyers you choose, and if your case is complicated it will add to the time and work involved – costs can vary from a couple of thousand dollars to millions. At PK Simpson, we have a ‘No Win No Fee’ policy, so if you lose it won’t cost anything.
In NSW, there is a time limit of 12 months from the date the will-maker died for their will to be contested.
Claiming family provision is the same as challenging or contesting a will. Family provision claims are for financial provision from the estate if you’ve been left out or a claim for more financial provision if your financial provision in the will is inadequate.
If a will is not an accurate reflection of the will-maker’s true intentions, it’s possible to make a legal, formal objection to challenge it, which is called ‘contesting’ a will. A contest to a will may be raised by an interested party on the basis that the will is not valid.
If you are eligible to contest a will, the Court will decide whether or not adequate provision has been made for you in the will. If it is satisfied that you’ve been treated unfairly, then the Court will make an ‘order for provision’ for you.
Those eligible according to each state’s law. Generally, though, you have to be a relative of the deceased or living in the same household. This is an oversimplification of eligibility since it is a complex area and it’s best to seek legal advice from PK Simpson Lawyers.
Generally, the costs come from the estate if the person contesting the will is successful. If unsuccessful, the claimant must pay the costs. If it goes to court, a judge may or may not order that costs be capped.