A valid Will is the direction from a deceased person as to how they want their estate distributed. For this reason, a court will not consider changing this direction without a valid reason to challenge a Will and only under limited circumstances.
What are grounds to challenge a Will?
All Australian States and Territories generally have similar grounds to challenge a Will such as:
- Appropriate provisions were not made for family members.
- There was evidence of tampering or the Will was not correctly executed.
- The deceased did not draw up a last Will.
- The maker of the Will was improperly influenced, forced or tricked into making the Will benefit a person or entity that was not the intent of the Will owner.
- The person make the Will didn’t have the understanding or mental capacity to make a Will.
What if you’re not identified as a beneficiary?
Even if you are not identified as a beneficiary, you may be entitled to challenge the Will. The person drawing up a Will does have a right to assign their assets and property however they see fit. People who would likely have the best chance of successfully contesting a Will that does not identify them as a beneficiary are:
- A current or former spouse or partner;
- A de facto;
- A child or grandchild;
- A dependent or person in a close relationship with the deceased at the time of death.
The court will consider a different factors when deciding if a family member should be eligible for a portion of the estate. To help determine the size of the portion, the court can consider the person’s financial resources, age and any disabilities. Depending on the State or Territory the Will is administered in, you may only have between 6 to 12 months after the Will is administered to contest the Will.
What if a Will is ambiguous?
In the majority of cases where the Will is clearly drawn up and precise, the courts generally interpret the Will as written. If the Will however is ambiguous the Court may be asked to clarify. In these situations, the court Will endeavour to interpret the intent of the deceased to best fulfil their wishes.
To avoid this problem, it is important that you invest in a Wills and Estates Lawyer help you prepare a Will that is clear.