Know These 10 Things to Gain an Advantage When Contesting a Will

On What Grounds Can You Contest a Will?

Certain situations will allow for contesting a will and they vary by state. Keep in mind, contesting a will and challenging a will are two separate things. 

Contesting a will happens when someone believes that they got left out, or deserve further provision from a will. The grounds for contesting a will are a demonstrated financial need and proof that the will-maker had a responsibility to provide for the contest. 

If your situation meets any of these criteria you can contest the will based on the provision. The court may consider the moral obligation of the deceased to support the contest. It will determine their responsibility by comparing it to what they think a reasonably minded testator would do in making their decision.

The Basis of Provision

The basis of provision allows for certain categories of people to contest provisions that have been made for them. A child left out of a will can make a claim that they are an eligible person to commence court proceedings. They may present the court with a family provision application to request an award. The court has the power to grant that award if there is supporting evidence that the testator had a responsibility to provide for the beneficiary. 

Some situations will allow a person to challenge the validity of a will. This happens when someone asserts the will is not valid because its execution did not meet formal requirements. If the testator lacked testamentary capacity the will is not valid. If someone forged the will or it was fraudulent it is invalid. Lastly, if the testator experienced undue influence a court might determine a will to be invalid.

Lack of Testamentary Capacity

Anyone who makes a will needs to be of sound mind to enter into a contract. If their mental capacity is questionable at the time of creating their will, someone can contest it. The court may refuse to admit the entire will to probate if it decides there was a lack of mental capacity at the time of creation. Probate will use a previous will, if available. 

This is why it is advisable not to destroy a prior will. 

This is a common reason that the court oversees disputes and is handled on a case by case basis. It will decide based on the evidence presented. If someone is making a will that is already in a fragile state or experiencing poor health they should get a medical report before signing the will. Medical records provided in a last will and testament help keep testamentary capacity from being questioned after the deceased’s death. 

1. Does the person making the will understand what a will does?
2. Can the person making the will recall what property they have?
3. Does the person making the will remember the people they normally provide for?
4. Is the person making the will able to consider the people who would normally benefit from the will?
5. Does the person making the will suffer from any delusions about any of the people who would expect to receive the entitlement under the will?
   

5 questions to ask when considering if a person has testamentary capacity:

Undue Influence

Someone making a will is said to be under duress or undue influence if they are getting unfairly influenced by another at the time of making their will. If a court determines a will was made outside of the testator's free will, it is invalid. To prove undue influence there needs to be clear evidence of the influence that forced the testator to make the will a certain way.

Fraud or Forgery

Someone can challenge a will if there is evidence to support that a beneficiary committed fraud. They can also make a challenge if they believe the will to be a forgery. Fraudulent wills and forged wills will be deemed invalid, but you will need to prove these allegations to a judge. 

What Happens When a Will Is Contested?

When a person contests a will it is because a “spouse”, “child” or “dependent” of the deceased feels that they got left out of the will unfairly, or were not justly provided for. It will go through a process of several steps to allow a judge to determine if provisions are necessary. 

The following are general steps involved during a will contest but are not an exhaustive list. There may be many more legal formalities involved depending on the case. 

• First, the person contesting the will must prove that they are an eligible person.
• That person, or their legal representative, will notify the executor of the will of their intent to make the claim. The executor needs to know so they can distribute the estate after the claim settles. 
• At this point, both parties involved can begin negotiations to try to settle without needing to go through the entire process of a court hearing. If they can reach a settlement both parties sign a formal agreement. 
• If negotiations fail, court proceedings will begin. A summons and an affidavit get filed in court and served to the executor. 
• The executor and beneficiaries have the right to defend the claim. 
• All parties to a will dispute take part in a mediation session. This is an opportunity for the parties to try to solve their dispute one more time before the court hearing. 
• If mediation does not resolve the issue then a trial will be set and all parties will need to attend. 
• Each party must present their positions before the court during the final hearing. This is where parties try to prove their financial position of need to the judge. It is measured against the size of the deceased estate. 
• After hearing all of the evidence the judge decides if there was an adequate provision, or if additional family provision needs to be made. 
• The judge also decides the responsibility for payment of court fees. 

Some of the factors considered when contesting a will include:

• Your financial need
• The nature and length of your relationship with the deceased
• You character
• Any obligations the deceased has to you or other beneficiaries
• Any contributions you made to the deceased's estate
• Deceased’s estate liabilities
• Your financial resources
• Your age
• Any disabilities you may have

Common Reasons For Will Disputes

Naturally, when a loved one passes it can cause a lot of negative emotions, they can become troublesome while waiting on the division of the deceased’s estate. Even with a valid will in place, beneficiaries can feel the need to dispute the instructions. Here are some of the most common reasons wills are disputed.

A Delay in Disbursement

The executor of the estate is responsible for getting a grant of probate and carrying out the instructions left in the will. There are no legal time limits that says how quickly they must act. If 12 months have passed and they still have not gone through probate court the beneficiaries can apply to the court to set a deadline for the person executing the will to complete probate. 

Disagreements on Property Division

Many families enter a dispute over what to do with the property that was passed on by the will maker. For example, deciding on whether to keep or sell a family home. A common way to resolve this problem is for the interested person who wishes to keep the house to buy out the family members that wish to sell.

Suspicious Asset Transfers

Someone named as executor or who has been given the power to manage the assets of the deceased may make changes to assets and bank accounts. Other beneficiaries may believe that transfer of assets was unauthorized or unfair and reduced the value of the estate. Investigations are required to determine if the suspicious circumstances were authorized or not and any corrections that may need to take place. 

Is It Hard to Contest a Will?

Contesting a Will under Australian succession law is a costly and lengthy process.  While many people may have the standing to contest a will in the Supreme Court, it is not necessarily early to be awarded a provision of a deceased estate.

If the will maker has taken care in creating a valid will that is unambiguous in their wishes, it can be difficult to successfully contest it. Missing the deadline in your state for filing a claim can also make it much more difficult to win a provision. If your claim fails, the court may order you to pay the legal costs for bringing the claim to court. 

Getting legal advice by talking to an experienced solicitor as soon as possible can help you to decide if filing a claim is right for you. They can also make sure you follow the proper process during the right time period.

Who Pays to Defend a Contested Will?

Contesting a will is not free, court fees can range from a few to many thousands. If the case goes to court the judge will determine who pays the court fees after hearing all the evidence for the trial.

In a family provisions case, you can pay no fees if you win your claim, as the costs will be covered by the estate if the claim is successful. However, it should be noted that even if you are a beneficiary of the residual estate, you will ultimately pay for court fees as the fees will come out of the estate before it is distributed to all beneficiaries.   If the claimant is not successful the general rule is that they are ordered to pay the estate’s legal fees as well as their own.

Can You Contest a Will if You Have Been Left Out?

Yes, you can contest a will if you have been unfairly left out. Some laws determine who is eligible to contest a will. If you were fully or partly dependent on the deceased with a close personal relationship you may be eligible even if you are not a legal family member. If you are over the age of 18 and are self-sufficient then you will need to prove to the court that the deceased had a moral duty to provide for you. You will also need to demonstrate that you have a financial need. The types of people who are eligible to contest will include:

• A current or former partner
• De facto partner
• Minor or adult children 
• Grandchildren
• Members of the deceased’s household
• Any dependents
• Someone who lived in the same household

Can You Stop Someone From Contesting a Will?

It is not possible to simply stop eligible persons from contesting a will in Australia. But if this is something you are concerned about while estate planning, you can make arrangements to greatly discourage someone from lodging a family provision claim later on. 

The best chance of avoiding family provision claims is to make adequate provisions for every beneficiary who could successfully contest the will. It does not have to be equal for each beneficiary, just reasonable for the relationship you share. 

It is also helpful to provide written justification in your will about the allocation awarded to each beneficiary, being thoughtful of their current and future needs. You should sign the will in the presence of witnesses. 

There are also steps you can take to change or distribute assets before your will becomes active. You can nominate a beneficiary for superannuation and life insurance policies. You can create jointly owned assets with the intended beneficiary who you want to inherit certain assets. You can also gift assets in your lifetime. 

These strategies keep assets from becoming part of the general estate of a deceased person. This allows them to stay separate from assets that could be redivided should someone successfully win a family provision order. These can be tricky legal matters that can vary by state. It can also impact taxation and income benefits, so you should obtain legal and accounting advice before you take any action. 

Can You Contest a Will After Probate?

Yes, you can contest a will after probate. A court gives a grant of probate after they determine a will to be valid. At this point, it is legal for the executor to carry out the will and distribute assets. 

You can contest a will after probate, but if the assets are already distributed it can be very difficult. There is also a time limit to how long you can wait before contesting a will after probate. 

In Australia, territories and states require adherence to their deadlines. They are as follows:

• In NSW and ACT, the deadline is 12 months from the date of death to lodge a claim in court. 
• In Victoria, the deadline is six months from the date of the grant of probate to complain to court. 
• In Queensland, the deadline is six months from the date of death to notify the executor of a claim, plus an additional three months to lodge the claim in court. 
• In Northern Territory, the deadline is 12 months from the date of the grant of probate to lodge the claim in court. 
• In Western Australia, the deadline is six months from the date of the grant of probate to lodge the claim in court. 
• In Tasmania, the deadline is three months from the date of the grant of probate to lodge the claim in court.

Can You Get a Legal Aid to Contest a Will?

Legal Aid is not available to give legal advice or help contest a will in Australia. But you can use them to find information and resources regarding the subject. They may be able to assist in finding funding for your case. As well as help you find a legal team to handle your case.

Do You Need a Solicitor to Contest a Will?

It is not a requirement to use a solicitor to contest a will, but it is highly recommended to seek legal advice before proceeding with any claim. You may find yourself in the middle of a complex and costly situation that legal representation can help you out of. 

They will be able to determine if you are eligible to make the claim. They will also be able to assess your circumstances and estimate your chances of success, allowing you to consider the worthiness of lodging a complaint in court. It is worth it to reach out to a local law firm, as many will discuss your situation for free and with no obligation so you can decide what is right for you. 

If you believe you were excluded from a will or unfairly provided for, don't wait to get your questions answered. Reach out to our team at KMB Legal to schedule a free consultation and find out how we can serve you during this turbulent time.