Contesting a Will

Contesting a Will – What you need to know

When someone passes away it can be a difficult time for everyone involved. This can be made harder if you’re concerned about your place in the Will of the deceased.  

Who can contest a Will? 

People have Wills 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 in most cases enforced by the Courts, there are some cases when a Will needs to be contested because it may treat a family member of the deceased unfairly or fails to provide for them at all.

People who can contest 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 contest 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.

There are different rules that apply to each State and Territory in Australia, so it is important to get advice that is relevant to your jurisdiction. 

When might I need to contest a Will?

There are many reasons why you may need to contest 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 contest 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 in Victoria. A successful 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 contest 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.

If you need Advice or want to speak to someone about contesting a Will, get in touch with our experienced Wills and Estates team today on 1300 584 626.