Disputing a Will

Who can dispute a Will?

People have Will’s to ensure that once they pass away, they have a say in how their assets are shared amongst the people in their life. While the wishes of people after they pass away are  respected, there are some cases when a Will needs to be disputed because it treats someone unfairly or fails to provide for them at all.

People who can dispute a Will include the children, spouse or other family members of the deceased. If you are not related to the deceased, you may still be able to dispute the Will if you can show that you had a close and meaningful relationship with the deceased that would create the expectation that you should have been included in the Will.

When might I need to dispute a Will?

There are many reasons why you may need to dispute a Will after someone has passed away.

• If you have been left out of a Will or you feel that your share in a Will is unfair, you may be able to dispute the Will. To be successful in a claim of this kind, you will need to show that the person who made the Will was under an obligation to provide for you in their Will. This is called a testator’s family maintenance claim. A successful testator family maintenance claim can result in the Will being altered to better provide for those who were in close and important relationships with the deceased.

• If you think that a Will does not accurately reflect the wishes of the person who has passed away, you may be able to bring a claim for lack of testamentary capacity. A lack of testamentary capacity claim needs to prove that at the time the Will was made, the person who made it did not have the mental capacity or understanding required to fully understand the effects of what was being created. This might occur in situations where a Will was created by someone in very old age or at a time that they were physically or mentally very unwell. To prove this, you may also need supporting evidence from a treating medical practitioner.

• If you find that one of the beneficiaries or trustees of a Will have failed to administer the Will properly you may be able to bring a breach of trust claim. Failure to administer a Will properly might include someone taking money from the estate for themselves or failing to distribute assets in the way the Will prescribes.

I think I need to dispute a Will, what can I do?

If you think that a Will fails to provide for you, doesn’t reflect the deceased’s wishes or has not being executed properly, it’s important that you get some professional advice as to how to go about achieving a fair outcome for you, the deceased and everyone involved.