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Contesting an unfair will

Losing a loved one is incredibly difficult in a number of ways. It is a period of emotional upheaval and you have to contend with your thoughts and feelings of loss, while you also have to plan and then attend all necessary memorial services. This is both a tiring and heart-wrenching process.

When it comes time to discuss the will and dividing assets, it can become difficult and awkward. This is especially true if you discover that the will is anything less than fair. Maybe the will was created years ago and certain people were left out or it was made when family relations were strained and have since been repaired.

There could be any number of reasons why a will might be unfair but you have to think about your next steps. Getting legal advice from a skilled estate disputes lawyer should be the first thing you do to get the ball rolling and protect your interests.

Reasons you can contest a will

First, you must establish grounds for contesting a will. There are many reasons to contest or even challenge a will, and it’s important to identify the best path to take to achieve the desired result.

Contesting vs. challenging

Contesting a will doesn’t bring into question the will’s validity, it only questions the terms of the will in regard to adequate provision, and it typically hinges on a family provision claim. Contesting a will generally means bringing evidence to support an inheritance or an increase in inheritance based on being an eligible person, and showing a need for the inheritance or that it was promised.

If you can show that you are an eligible person and were unfairly excluded from the will, it is relatively easy with the help of an experienced solicitor to successfully win estate disputes and receive a fair inheritance. Your solicitor can help you file a family provision application within the time limit required and support your quest to gain the inheritance you deserve.

Challenging a will seeks to get the will itself thrown out, usually because of questions about the testamentary capacity of the decedent to distribute their assets and estate. Challenging a will generally means bringing evidence that the testator either did not have full mental capacity (due to dementia or another illness) or was under the undue influence of another person who was taking advantage to have the will redrawn to their own benefit.

If the deceased person is found to have lacked testamentary capacity at the time the most recent will was made or was under undue influence, the court can refuse to admit the will to probate, and a previous will is generally admitted instead. Proving lack of mental capacity on the part of the testator may be more difficult if the decedent obtained a medical report showing capacity before they made their will.

Who is an eligible person?

Any person who believes he or she has been left out of a will or has not been provided for properly regarding maintenance and support will have to prove they are an eligible person in order to contest the will. Eligible persons generally include:

  • A spouse married to the deceased (or a domestic partner living with the deceased) at the time of death
  • Former spouses
  • Children, including adopted children and artificially conceived children
  • Stepchildren who can prove that they were dependent on the deceased
  • Grandchildren who can establish dependency of direct and immediate support from the deceased
  • Persons who were members of the same household as the deceased and at any time wholly or partly dependent on them
  • Any person with whom, at the time of the deceased’s passing, was living in a close personal relationship with them


Other people may be deemed eligible on the basis of promises made to them by the deceased.

The claims process

The first thing you want to do is speak to a legal team about the next steps you should take to move forward. Applications to contest a will need to be made within 6-12 months of the date of death of the individual whose will you are opposing. Otherwise, there must be sufficient cause proven for the application to be accepted outside of the timeframe, such as an applicant not knowing that the deceased had passed away.

Establish dependency

Your lawyer will help you with this but you should start putting together proof that you depended on the deceased person financially, although displaying other forms of dependence (such as emotional, for instance) by establishing proof of a close relationship may also be helpful.

Establish that you were promised something

It’s also possible that the deceased person had promised that you would be given something in his or her will or otherwise provided for after their passing. You should begin amassing any proof you have to these claims, if possible, especially if you cannot establish yourself as a dependent of that person. This is also particularly important if this promise came as part of a bargain that you provided services as part of.

Informing the executor

The process of contesting a will begins with informing the executor of the estate of the deceased person of the intent to make a claim and getting an injunction on the executor to prevent distribution of the estate during litigation. If an estate is distributed, beneficiaries of the estate can spend the money, making recovery impossible.

Gathering evidence

Preparing for court typically involves an overview of your relationships with the deceased, review of assets for all parties involved, and disclosure of your financial status. Anything that can help prove dependency should be given to your lawyer to build your claim.

Evidence that the court may consider when evaluating your claim can include:

  • The size of the estate, and the duration and nature of a relationship with the deceased.
  • Your relationship with the deceased person will be examined and compared to relationships other claimants had with the deceased. The court may judge that the estate should be apportioned according to the closest people to the decedent in cases of a small estate and their needs will be put first. If your claim is weak and your status as an eligible person isn’t as strong, you may not have a family provision claim that exceeds that of other claimants.
  • Obligations or responsibilities the deceased may have had to you will also be examined and compared to those owed to other claimants. In most cases, the financial needs and circumstances of the applicant will significantly weigh the decision for inheritance distribution, and the age of applicants will also play a large part. Dependent children are customarily assumed to have a high need for support but this can be examined and your claim may still have more merit if they are well provided for from other avenues.
  • Contributions made by the applicant to improve the estate of the deceased, and evidence of statements made by the deceased to the applicant prior to their death, can also be held up as reasons why a person should receive an inheritance. This is possible even if their relationship wasn’t as strong as some of the other claimants. In many cases, if you contributed to the running of a business on the understanding it would be left to you upon the testator’s death, or you provided care for the deceased in their declining years and were made promises you would be included in the will, evidence of such understandings or promises can work on your behalf.

Mediation, settlements and court judgements

Once your case is built, you can open negotiations and try to work toward a settlement with the executor of the estate. If a settlement can be reached before an appearance in court is necessary, you may be able to cut the time to get your inheritance short but you’ll also miss out on getting to see the other parties’ disclosed evidence and could be setting yourself up to accept an offer that is less than you deserve.

Avoiding an early settlement in mediation doesn’t mean you can’t settle even after the case begins in court. Judges typically prefer that parties come to a settlement, and will allow a settlement to be reached at any point in the process short of a judgment. Agreements reached in mediation must be approved by the court whether or not you appear, so make sure you get legal advice and gather all of your evidence even if it looks like you’ll be able to work things out quickly.

Working with a skilled solicitor

Having legal advice and representation from qualified estate dispute attorneys can make a massive difference in the outcome of your claim. Without the help of a will dispute lawyer, you may miss deadlines for filing a claim, fail to present the correct evidence to support your claim, and ultimately be denied the inheritance you deserve while you are still reeling from a personal loss.

Your solicitor can help you from the start to the finish of your case, and when you work with Gerarad Malouf & Partners you benefit from our no-win, no-fee case handling, meaning that if you don’t get an inheritance, you won’t have to pay legal fees to our firm. When you win a claim, the state generally pays for court costs as well, so you assume very little risk when choosing to dispute a will.

Gerard Malouf & Partners has a dedicated client care service team to ensure that you are kept up-to-date at all stages and you receive the triple “C” compassion, commitment, and competence from all our staff.


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Gerard Malouf & Partners
 — Personal Injury Compensation Lawyers

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