Yes, you can a challenge a Will on 2 grounds –
- That the Will is invalid because the Will maker lacked the mental capacity to make a Will, or did so under coercion or undue influence; or
- You feel that inadequate provision or no provision has been made for you in the Will.
Whichever one applies to your situation, you should seek legal advice from a lawyer with experience in contesting Wills.
The second type of challenge to a Will is the more common type of claim and is called a “Family Provision Claim”
To make a Family Provision Claim you must be able to prove that –
- You are an eligible person (eg a spouse, child, step-child or grandchild)
- You have been left out of the Will;
- Or that, even if you are mentioned in the Will, inadequate provision was made for you out of the estate;
- There are no “estrangement issues” that a Court might regard as disentitling you from any provision in the Will; and
- You have a financial need that can be met in whole or in part by the making of provision for you out of the estate.
Quite often these types of applications are settled out of Court by way of negotiation or mediation. However, the Court may still need to approve any agreement that is reached.
Are there time limits for making a Family Provision Claim?
Yes, there are strict time limits for making a Family Provision Claim. You should seek early legal advice to ensure that you file an Application with the Court within 12 months from the date of death of the deceased person.
If you do not comply with this time limit you may lose your ability to make a Family Provision Application.
In very limited circumstances it is possible to commence an application out of time, but it is important that this be before the Estate is distributed.
Who will pay my legal costs for contesting a Will?
Generally speaking, your legal costs of making a Family Provision Claim will be paid out of the deceased’s estate.
However, that is not in all cases. If the Executors of the deceased estate do not agree to pay your legal fees, you may need to apply to the Court for your costs to be paid.
If you are unsuccessful in contesting a Will, the Court may order that you pay your own costs as well as the costs of the deceased estate.
If you think you may have a Family Provision Claim, you should seek early legal advice. Call Geoff Brazel, Specialist estate lawyer on 4324 7699.