Challenging a Will

Even if you feel that the executor of a Will is not carrying out his or her duties properly, has a conflict of interest or is acting improperly, the power to remove the executor from a Will lies solely with the Court. The Courts have wide powers to remove a personal representative/executor, however it is in the Court’s discretion as to whether the executor is removed.

If you believe that you have been unfairly left out of a Will, it is important to obtain legal advice from a lawyer who is experienced in challenging the Wills of deceased estates. To properly contest a Will, you will need to make an application to the Court seeking an order that you are properly provided for from the Will that you are disputing.

If you believe that the deceased person was under pressure or influence when making their Will, you may be able to contest the Will based on undue influence. Detailed consideration will need to be given to this issue, and evidence obtained, before a Will is challenged on this basis.

You may be able to challenge the validity of the last Will of a deceased person, on the basis that at the time of making the Will, the Will maker did not have testamentary capacity. There are a number of tests a Court will apply to determine whether a deceased person had testamentary capacity at the time the Will was made. Furthermore, a Court may also need to review the Will maker’s medical records to assist in the process.

If you were financially dependent on someone prior to their death and have been unfairly left out of a Will, then contesting a Will or disputing a Will may not be your only option. The deceased person may have had superannuation death benefits payable to relatives or anyone who was in a financially interdependent relationship with the deceased. It is important that someone who was financially interdependent on the deceased makes a claim for any of the deceased’s superannuation death benefits payable. Depending on whether there is a binding death benefit nomination in place, and how the trustee of a superannuation fund intends to pay the superannuation funds, you may also need to consider lodging a family provision claim or contesting a Will to protect your interests (for example if the superannuation monies are paid into the Estate funds, rather than to you directly).

The relationship between a parent and a child is only one of the factors a Court considers when determining the amount to be awarded to someone who is challenging a Will or claiming against an Estate. If the child claiming against an Estate or challenging a Will is financially worse off than other siblings who were close to the deceased, then that child may potentially have a stronger financial claim to the Estate than the siblings who were close to the deceased. The reason for this is that the financial need of someone that contests an Estate is also a factor which a Court considers. If someone is contesting a Will, each case will be determined on its merits.

Even if Probate has been granted by a Court, you still have to place the executor or personal representative on notice of your intention to contest the Will. It is important that if you intend to challenge a Will, you place the executor or personal representative of the Estate of the deceased on notice within 12 months of the death of the deceased. If you have placed the executor on notice of your intentions to contest a Will, you then have about 1 month to lodge your Court proceedings. It is important that you place the executor on notice within the time limits to ensure that your rights are protected.

If there are many parties contesting a Will, it is a good idea to consult Estate lawyers who are experienced in dealing with Will disputes. At Probatum, we are able to assist you in making sure you are adequately provided for. If a family dispute over a deceased Estate cannot be resolved amicably, you may need to apply to the Court to have the dispute resolved.

Stepfamilies can complicate deceased Estate administration, but the law does have some rules that determine who from a blended family has grounds to contest a Will. If you are from a blended family, you may be able to claim against an Estate, but only if you are the stepchild or adopted child of the deceased.