There are a number of factors to consider prior to contesting a will as there are few circumstances in which an Australian court will change a valid will, and the process can be costly for those involved. It is important to note that the ultimate objective of the court is to ensure that the wishes of the deceased are carried out in the manner in which they intended.
Are there legitimate grounds for challenging the will?
The circumstances where a will can be contested are similar in all Australian States and Territories. These circumstances include instances where:
1. The will that was executed was not in fact the final will made by the deceased
2. Family members are not adequately provided for
3. The execution of the will was not carried out lawfully
4. The will maker was influenced when signing the will
5. The will has been tampered with
6. The mental capacity and understanding of the will maker was insufficient at the time of the execution.
The grounds on which you seek to base your argument for contesting the will is important. If you seek to contest a will based on fraud, forgery or undue influence it is important to review the strength of your proposed evidence with an experienced estate lawyer, who can provide advice on your likelihood of success. If you are aware of a more recent will to the one being executed, you certainly have valid grounds to contest the will. The court's interest is to fulfill the wishes of the deceased, so if a valid will can be produced that is dated more recently than that being executed, the court is likely to follow the newer will as an updated expression of the deceased's intentions regarding his or her estate.
Can I personally challenge the will?
The power of the Court to make a Testator's Family Maintenance (TFM) order is one avenue by which a person can challenge a will. This claim arises in situations where a person can prove that the deceased person held a responsibility to provide for their ongoing support, and that they have failed to uphold this through their will. The eligibility of those seeking to apply for a TFM claim has recently been amended to narrow the eligibility of claimants to the following relationships with the deceased:
1. Spouse or domestic partner of the deceased
2. Child or stepchild of the deceased.
3. A person who, for a substantial period of time believed that the deceased was his or her parent and was treated by the deceased as their child.
4. Former spouse or domestic partner of the deceased
5. Grandchild of the deceased
6. A member of the same household as the deceased.
Factors that the Court will take into consideration when a will is challenged
When making an order the Court will consider:
â— the nature and length your relationship with the deceased
â— the responsibilities and obligations of the Deceased to you and the named beneficiaries
â— your financial needs, resources and earning capacity
â— contributions made by you to the Deceased's welfare, family or Estate
â— your conduct and character.
When a person is not a beneficiary in a will, an application for a TFM order must be received by the Court within 6 months of the date of the execution of the will.
Obtaining legal representation is an important factor to consider prior to challenging a will. Legal advice should always be sought before partaking in the process that is both complicated and time consuming. It is important to consider the ramifications that contesting the will may also have on future relationships with your family. A lawyer can assess the potential of successfully challenging the will and can give advice throughout the difficult process.