CONTESTING A LEGAL WILL

While the law recognised a person’s right to make a will leaving their property to whom they wish, it does allow somebody to dispute a will where there are good reasons. The most common circumstances in which a wills dispute arises are:

• Where a person who ought to have been provided for has been left out of the will;
• Where the intentions of the person who made the will are unclear;
• Where the person making the will did not have the mental capacity to understand what he/she was doing;
• Where the will is grossly unfair; or
• Where there are dependants who are partially or fully dependant on the deceased who have been excluded.

Circumstances required to dispute a Will

To succeed in a wills dispute the deceased must have had a moral responsibility towards you and must have failed in that moral responsibility when making their will.

Time limits to contest a Will

The time limits to contest a will vary from state to state.

For example, within Victoria a will may be contested up to six months from the Grant of Probate. Application for probate will usually take place within one to 8 weeks from the date of death.

It is therefore important to seek legal advice quickly if you are considering contesting a will.

Frequently asked questions

I am a de facto spouse - can I dispute a will?
The law in most states recognises that defacto or same sex partners or anyone else who can show that they have some or all of the criteria mentioned above has an ability to challenge a will that is unfair.

How much does it cost to dispute a will?
Many firms act on a no win, no charge basis for their professional fees. This is subject to terms and conditions as discussed with each individual. Out of pocket expenses may be payable by the client and this will also be discussed with each individual.

Does contesting a will mean I have to go to Court?
Wills disputes matters are resolved through a settlement agreement wherever possible. This avoids taking the matter to court and has the following advantages:

• reducing legal costs;
• bringing the matter to an early resolution; and
• preserving family relations by avoiding the stress associated with legal proceedings.

However, to ensure that a fair result is achieved, it may be necessary for a will dispute to proceed to court.

Need Legal Advice?

Our legal referral service can assist you by referring you to a wills dispute lawyer. This service is free to use.

Just complete the Contact Form to find out more about your rights today.