Do You Want to Contest a Will? What You Need to Know

If you contest a will, you may feel you have received inadequate provision. If the court rules in your favour, it will vary the provisions or redistribute the estate. You can also contest a will if a person died intestate, meaning they died without creating the document, or if a will is found to be invalid. To test a will’s validity, you must challenge the document.

Talk and Consult with a Lawyer

Usually the immediate family can contest a will. If you consult with a lawyer and find that you are not eligible, you can still challenge a will or bring another “will dispute” to the legal table. The best way to determine if you are eligible is to simply ask a lawyer about your rights in the matter. An experienced lawyer can provide you with a more accurate assessment.

Time Limitations

Contact a lawyer immediately as there is a time limit for making a dispute or claim. However, the timeframe depends on the state. In the NSW, you have 12 months from the date of the death of the decedent to make a will dispute claim. In VIC, you have six months from the date of a grant of probate, and nine months from the official date of death in QLD. However, notification still has to be made in QLD six months from the date of death.

Ensure Your Rights

If you have a good reason to bring a claim, even if the time limit has passed, you may be able to do so. However, that being said, you still need to seek legal advice as soon as possible. When you urgently seek advice, you can ensure the protection of your legal rights.

Extending the Time to File a Claim

If the time limit is passed, you may be able to receive an extension of a time for contesting a will. If you were not aware of specific time limits or did not know the person had died, you may be able to ask for the extension.

Considerations for Provision

To decide whether you are entitled to receive provision from a will, the court reviewing the case considers the following:

  • whether the provision that was received is sufficient for your maintenance, education, or advancement in life;
  • the claims of other beneficiaries and eligible persons;
  • the duration and nature of your relationship with the decedent; and
  • your earning capacity and financial resources.

The size of the estate is also considered. For instance, you may have a strong claim on the basis of need and relationship. However, if the estate is small, then the court has little scope to order provision. The court also looks at the financial circumstances of whom you cohabit. In addition, it reviews any financial or non-financial contributions you made to the person who died. Any provision the decedent made to you during their lifetime is also considered.

Make sure you review these areas yourself when you seek the services of an estate lawyer. That way, you will be better able to see how a claim can be made in your favour.