The grounds to contest a will can vary but may include allegations of fraud or forgery, a lack of mental capacity of the deceased when the will was written, the will being created under duress, or the will not adhering to the legal requirements of the state. Depending on the state, the grounds to contest a will may also include the belief that the deceased was unduly influenced by someone else, the deceased was not aware of the contents of the will, or the will was not properly witnessed or signed. For these reasons, there are many instances when someone in relation to a deceased person will want to challenge that person’s will – and often be completely justified in doing so.
Contrary to a lot of TV/movie dramas, the individual(s) contesting a will are not “being greedy” or “causing trouble”. Very often, they are merely seeking provisions to which they are legally entitled but which have been left out of the document either accidentally or intentionally. An invalid or unfair will should not be allowed to stand, and that is why the legal process for challenging a will exists.
But on what are the grounds to contest a will? There are three main categories, relating to validity, construction and provision. Let’s take a look at each one…
Contesting a will can happen when the contester doesn’t believe it is the real final will of the deceased. Or if they believe the deceased was not of sound mind when they signed the will. Or if they believe the will was altered or added to by another party after it was signed by the deceased. This is known as “Contesting grant of probate”.
Challenging a will may also occur if the contents of the document are unclear, ambiguous or insufficiently detailed. Put simply, when it’s not obvious who gets what. In such cases, the court must attempt to clarify the instructions of the deceased. This is known as “Contesting on point of construction”.
Although a person making a will may divide up their worldly goods however they choose, if they fail to provide for a close family member or dependant who would otherwise suffer hardship, that person has a legal right to apply for a fair share of the deceased’s estate. This is known as a “Family provision application”.
Those entitled to apply are the deceased’s spouse, any child of the deceased (including stepkids and adopted children) and any other dependant. “Dependant” means someone who was being financially supported by the deceased prior to their death and is either their mother or father, the other parent of one of their kids, or under the age of 18 themselves. Anyone falling under these groups may claim that they have been left out of an unfair will and deserve to be provided for by the estate.
For top legal advice backed by decades of experience, contact Dr Craig Jensen Lawyers. We are based in the suburb of Parkinson in the south of Brisbane, Queensland. You can email firstname.lastname@example.org, phone (07) 3711 6722 or fax (07) 3711 6733. Alternatively, you can submit an enquiry via the form on this site.