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Can I Contest a Will?

Discussion in 'Wills and Estate Planning Law Forum' started by Jackerouac, 17 October 2014.

  1. Jackerouac

    Jackerouac Member

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    How can I go about contesting a will when it was changed 6 months before the death of my grandmother?

    Secondly, if I am a beneficiary in a will and the Executor has not been fulfilling their duty in a timely manner may I sue? The Grandmother died in July and there's been nothing. Meanwhile the executor is living in her house and moving and selling off furniture.

    Cheers
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Jackerouac,

    1. You can contest the will if you are a child of the deceased or someone who was maintained by the deceased immediately before her death.
    2. You can challenge the validity of the will/amendment on the ground of lack of testamentary capacity (i.e your grandmother was coerced into changing the will, she did not know what she was doing because of illness that significantly affected her capacity to leave gifts to people etc). This is generally quite difficult but if successful, the change/new will is invalid.
    3. The executor has 1 year grace before distributing and may extend this period with leave fro court. This is because there are time limits for when unknown creditors may claim against the estate and unknown beneficiaries need to be found or new eligible persons may contest the will. The executor should not be distributing property before these time limits have expired.
    4. The executor should not be dealing with the estate until they have obtained a grant of probate. Otherwise, any dealings which are later successful challenged can be accounted against the executed personally. Which means, the executor may be liable to pay back any loss or disadvantage incurred by a beneficiary due to the executor's mismanagement of the estate.
    5. However, the estate immediately vests in the executor after the deceased's death. This means, the executor has legal right to deal with the property as they like as long as it is in accordance with the will. The executor owes a duty to the beneficiaries as a whole to manage the estate in a proper manner and in accordance with the law relating to wills and probates. This duty stems from the will itself.
     
  3. Jackerouac

    Jackerouac Member

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    Thanks for that so I have to wait a year
     
  4. Sophea

    Sophea Well-Known Member

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    Hi Jackerouac,

    A little more info with respect to challenging the validity of the will:

    Firstly, note that any challenge to the will must be done before probate is obtained.

    You can essentially challenge a will after the death of the deceased, on 3 grounds:
    • If the deceased did not have capacity to make the will at the time they signed it
    • If the deceased made the Will under the influence of another person
    • If the deceased had a responsibility to provide for you, and you believe you haven't been left a fair share of the assets of the estate.
    If you succeed on the first 2 grounds the later made Will, will be basically void and the estate will be distributed in accordance with the last valid will made by the Deceased before the void one.

    If you succeed on the last ground, a family provision application - the court will make orders requiring that you be apportioned a share of the estate, despite the most recent will being valid.
     
  5. Sarah J

    Sarah J Well-Known Member

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    My understanding is that:

    1. Under the first two grounds that Sophea mentioned, where you're challenging the validity of the will, then it should be done when probate is being heard or before probate is granted.

    2. If you're contesting a will on the ground of inadequate financial provision, the third ground that Sophea mentioned, then this can be done anytime within 6 months after the grant of probate (or other representation) (i.e. you cannot seek a financial provision before the grant is issued because the will has not been validated yet). This time limit can be extended in special circumstances.

    3. Given that persons may contest the will on this third ground, the executor will usually not distribute until 6 months after grant of probate in case there are claims under the Inheritance Act.

    Of course, this information is very general, and more specific advise will be found in the legislation of your particular State or Territory.
     

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