Contested wills are a common legal issue in Australia. When someone passes away, their assets and property are distributed according to their last will and testament. However, sometimes, the will may be disputed by a family member or beneficiary who feels that they have not been adequately provided for or that the will is invalid for some reason.
In Australia, the laws surrounding contested wills are complex and can vary depending on the state or territory in which the deceased lived. However, there are certain key principles that apply across the country, and it is important to understand these if you are considering contesting a will or defending a will against a challenge.
Grounds for Contesting a Will
There are a number of different reasons why someone may choose to contest a will. Some of the most common grounds for contesting a will include:
1. Lack of testamentary capacity – this means that the person who made the will (the testator) did not have the mental capacity to understand what they were doing when they made the will. For example, if the testator was suffering from dementia at the time of making the will, it may be argued that they did not have the capacity to understand the implications of their
2. Undue influence – this refers to a situation where the testator was coerced or manipulated into making the will in a particular way. For example, if a caregiver or family member pressured the testator into leaving them a larger share of the estate than they would have otherwise.
3. Fraudulent wills – in some cases, a will may be found to be fraudulent. This could be because the testator was misled into signing the will, or because the will was forged.
4. Family provision claims – these are claims made by family members or dependents of the deceased who feel that they have not been adequately provided for in the will. This is a common type of claim in Australia, particularly when the deceased has children or other dependents who were not mentioned in the will.
Challenging a will can be a complex and emotional process, and it is important to seek legal advice from an experienced estate lawyer if you are considering taking this step. Your lawyer will be able to advise you on the strength of your case and the likelihood of success, as well as guide you through the legal process.
The Legal Process
If you are considering contesting a will, it is important to be aware of the legal process that is involved. The exact process can vary depending on the state or territory in which the deceased lived, but there are some general steps that are typically involved.
1. Gathering evidence – the first step in contesting a will is to gather evidence to support your case. This may involve obtaining medical reports or witness statements, or looking for evidence of undue influence or fraudulent activity.
2. Mediation – in many cases, the parties involved in a contested will dispute will be required to attend mediation before the matter can proceed to court. Mediation involves sitting down with the other parties and a mediator to try and reach a resolution that everyone is happy with.
3. Court proceedings – if mediation is unsuccessful, the matter may proceed to court. This can be a lengthy and expensive process, and it is important to have an experienced estate lawyer representing you. The court will hear evidence from both sides and make a decision on the validity of the will and any family provision claims.
4. Appeals – in some cases, either party may choose to appeal the decision of the court. This can further prolong the legal process and increase the costs involved.
Family Provision Claims
As mentioned, one of the most common reasons for contesting a will in Australia is to make a family provision claim. This is a claim made by a family member or dependent of the deceased who feels that they have not been adequately provided for. In many cases, family provision claims are made by children of the deceased who feel that they have been unfairly left out of the will. In some cases, the deceased may have had a difficult relationship with their child or children, or may have chosen to leave them out of the will for other reasons. However, under Australian law, children of the deceased have a legal right to claim provision from the estate, regardless of the relationship they had with their parent.
The law recognises that a testator has a moral obligation to provide for their family, and this includes children who may have been left out of the will. However, it is important to note that making a family provision claim does not guarantee that you will receive a share of the estate. The court will take a range of factors into account when considering these claims, including the financial needs of the claimant, the size of the estate, and the relationship between the claimant and the deceased.
Defending a Will
If you are the executor of a will that is being contested, it is important to seek legal advice as soon as possible. Your lawyer will be able to guide you through the process of defending the will and help you to gather the evidence you need to support your case.
There are a number of strategies that can be used to defend a will, including:
1. Challenging the validity of the claim – if the claimant is making a family provision claim, it may be possible to challenge the validity of the claim by arguing that they were not financially dependent on the deceased, or that they have already received adequate provision from the estate.
2. Proving testamentary capacity – if the claimant is arguing that the testator did not have the capacity to make the will, it may be possible to gather medical evidence to show that the testator was of sound mind at the time of making the will.
3. Providing evidence of the testator’s intentions – if the will is being challenged on the grounds of undue influence, it may be possible to provide evidence of the testator’s intentions, such as witness statements or video recordings.
Contested wills are a complex legal issue in Australia and can be emotionally challenging for all involved. If you are considering contesting a will or defending a will against a challenge, it is important to seek legal advice from an experienced estate lawyer. Your lawyer will be able to guide you through the legal process, help you to gather evidence to support your case, and represent you in court if necessary.
Ultimately, the goal of any contested will dispute should be to reach a resolution that is fair and equitable for all parties involved. While the legal process can be challenging, with the right legal representation and a clear understanding of the relevant laws, it is possible to achieve a positive outcome.