It’s a fact of life that occasionally a person will disagree with a will, believing it to be invalid or unfair. Depending on their relationship to the deceased and certain other key factors (e.g. a time limit), they may be able to legally contest the will. It will then usually be the duty of the executor to defend the will in court. Depending on which state of Australia you are in, there are differences in the laws regarding the contesting and defending of wills. However, the following guide should hopefully provide a basic understanding of this sometimes-unavoidable situation.
Subject to local laws, a person will usually need to be either the spouse, child or a dependant of the deceased in order to contest their will. A dependant could mean one of the deceased’s own parents, the parent of one of their children, or another person under the age of 18 whom they were looking after before they died, e.g. a dependant grandchild.
A will may be contested on the grounds that the deceased was not of sound mind at the time they made it and/or they were being unduly influenced.
Someone might contest a will because they believe it to have been either tampered with or wholly fabricated – i.e. that a fraud has been committed.
A common reason for a person to contest a will is simply that they feel the deceased’s assets have been unfairly distributed among beneficiaries. Essentially, they are asking the court to come up with a fairer distribution.
As already stated in the introduction, the executor of a will is usually the one who will defend it. An exception to this is when the deceased was intestate, i.e. they did not appear to leave behind a will. When this happens, the court appoints an administrator to distribute assets according to specific guidelines. So, it may be the administrator who takes a role comparable to defending a will.
Using the state of Queensland as an example, a will should be contested within six months of the owner of the will’s death. The executor must be notified in writing during this period (of the intention to contest) or it is reasonable for them to go ahead and distribute the deceased’s assets.
When considering a claim, the court may take into account such things as the amount of support the person contesting the will received from the deceased when they were alive. Also, any promises the deceased made to them regarding assets (which might not be reflected in the will). The claimant’s present standard of living is another factor, as are significant contributions they made to the deceased’s estate.
Please remember that the above information is only a brief general summary and the details of individual cases vary greatly. For expert legal advice and assistance with contesting or defending a will, backed up by decades of experience, contact Dr Craig Jensen Lawyers. You can email email@example.com, phone (07) 3711 6722 or fax (07) 3711 6733. Alternatively, you can submit an enquiry via the form on this site.