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Who can contest a will and how to prepare

A lot can happen in your lifetime. You meet people who make a big impact and sometimes those relationships fall away over time. Near the end of someone’s life, they will hopefully write a will outlining which of their physical positions each person in their family or close friends should share.

Sometimes you may have spent a lot of time with the deceased to support them near the end of their life or were part of their close family, yet did not appear in their will.

There are legal ramifications to being left out of a will you feel like you have entitlements to gain from. This article will highlight who is eligible for a family provision claim and how to set up your case for success.

Challenging a will

Dealing with the death of a loved one is one thing, going through the logistics and paperwork afterward is another entirely different. You must sort through their things and get their affairs to ensure you are honouring their death and their final wishes are met. If the deceased left a will behind outlining who will collect what after their death, and you are left out, you may have a case for challenging the will.

There are several reasons why you may contest a will. The most typical reason someone will make a family provision claim is if they feel like there was a sudden change in the will and there is evidence of undue influence. Contesting a will as a result of suspected undue influence means that the testator, or will-maker, was influenced by someone to make changes in favour of a certain person or group of people. Therefore, the final document was not created of the testator’s free will and invalidates it together.

Two other reasons why a beneficiary may contest a will include unfit capacity and an unfair share of assets.

Being unfit, or lacking the necessary testamentary capacity, to write a will can come in many forms. This may be the age of the person writing the will or mental wellness. For a will to be considered a legal document, the maker must be at least 18 years of age. Mental unwellness can affect the validity of a will as well. The person making the will must be of sound mind and body.

To contest a will, you are required to prove that the deceased was not at their best at the time of signing their last and final will. However, not everyone can contest a will.

Who can contest a will?

While who exactly can contest a will varies the local government, there are general similarities across the country. Making an estate claim is a movement against the final wishes of a family member and must be handled with care by the right person. An eligible person allowed to file a claim against an unfair will includes:

  • A spouse, domestic partner, former partner or de facto partner.
  • A grandchild or member of the will-maker’s household.
  • A niece or nephew.
  • A child, including stepchildren.
  • A dependent or someone who was financially supported by the deceased.

An eligible person is at least 18 years of age (25 in some states) and must be self-sufficient, yet can prove that the deceased had a moral duty to you. This is usually a child of the deceased, but sometimes this person may have been a benefactor who was close to the will-maker near the end of their death or even the executor of the will itself.

The executor is someone who is usually named in the will and appointed by the court to distribute the wills estate, pay their bills and dispose of property. If this person wants to contest a will, they will need to act quickly before all of the items on the will are distributed.

Generally, for anyone who wants to contest a will, it’s best to do so as soon as possible and before all items have been distributed, after which, getting the compensation and assets you believe are owed to you becomes a lot more difficult.

Preparing to bring a will to court

Before going to court and proceeding with a family provision claim, it’s advisable to seek legal advice from a family provision claim lawyer. The law professionals at Gerard Malouf & Partners know the local employment law and professional standards legislation applicable to your case. At the beginning of this process, you and your lawyer will look over your eligibility to contest the will, your likelihood of succeeding in the case and what you’ll need to get the assets you desire.

The first step you’ll need to take after contacting an estate lawyer is notifying the executor about your intentions of refuting the will so they can cease asset distribution.

Next, all people who are named in the will and those who are eligible to contest will meet and make negotiations about the deceased’s estate. If an adequate provision is reached then the executor will redistribute the assets. If one is not reached, court proceedings will commence including a summons and an affidavit.

A mediator will be next to look over the case and evaluate the validity of the will. If an agreement cannot be reached at mediation, the case will go to trial where both parties will need to present their evidence and argument. In the end, a judge will decide how the estate will be distributed and who is responsible for the court fees.

If negotiations can be made outside of the court, contesting a will could only take six months to resolve. However, if the case goes to court, the process could take longer than two years for a court hearing. The legal cost following the final verdict of the contesting will is determined by the judge at the end of the proceedings.

Gerard Malouf & Partners can help you proceed with a family provision claim

The court will look at several different factors as they assess not only your eligibility to contest wills but also why you should be owed benefits from the deceased’s estate at all. Just because you are eligible to contest the will does not mean you are guaranteed a portion of the estate.

Working with a law professional specialising in family provision claims can help you navigate the nuances of family law more easily. Going to court is always a difficult process and some will miss out on what they’re owed because they don’t want to deal with the back and forth negotiations and arguments entail. A law professional can help take care of the process for you as you grieve your loved one.

We are the leading no win no fee law office in Australia that offers no-obligation legal advice upon your first consultation with us. This means that a dispute lawyer will look closely at your case to determine your potential for succeeding. Once we move forward with the case, we will send in the family provision application and necessary paperwork throughout the process so you don’t miss out on any compensation.

Costs of a family provision claim vary significantly depending on the specifics of what you are contesting for, if the case goes to court and how the judge decides. As a no-win no fee office, if we don’t successfully get you the assets you desire, you don’t pay anything.

Get ahead of probate and contact a Gerard Malouf & Partners professional today for a consultation.

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Gerard Malouf & Partners have provided friendly, experienced legal advice to communities across Australia for over 35 years. Our Personal Injury Lawyers have taken on ten’s of thousands of cases and we are proud to have won billions of dollars for our clients.
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.

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