A will or testament is a legal document detailing a person’s final wishes before departing. Although a will may include funeral and burial plans, it is often used to communicate how they wish to distribute their assets.
Although there are ways to minimise will contests and disputes, an air-tight will does not exist. If an heir feels they did not receive enough assets, they will likely hire a will and estate lawyer to contest the document.
If you are thinking about contesting a loved one’s final will, here are some of the things that you need to know.
Challenging vs. Contesting a Will
Challenging and contesting a will are two different things.
When a claimant contests a will, they feel left out of the will and aim to rectify parts of the document. They can file a Family Maintenance List claim under the Administration and Probate Act of 1958 (the Act).
Meanwhile, challenging a will questions its validity and authenticity. When a will is challenged, the claimant wants to invalidate the will in its entirety.
Before a will can be disputed, the claimant must be deemed eligible. Below are the people eligible to contest a will:
- Deceased’s current and former partner or spouse
- Testator’s child or people who the deceased treated as such
- Deceased’s grandchildren
- Testator’s daughter or son-in-law whose spouse or partner died a year before the testator’s death
- Member of the deceased’s household
Wills Cannot Be Contested before a Probate Grant
Grants of Probate are documents that a will’s executor, typically the deceased’s will and estate lawyer, must file to substantiate the testator’s death. These include a copy of the death certificate, the will, and the assets inventory. Until the probate is granted, no one can contest a will.
There is a Time Limit
If you plan to contest a will, it is best to do it immediately. Once you get a copy of the will, hire a will and estate lawyer to provide you with sound legal advice.
In the event that a will is left uncontested and unchallenged for six months, the executor can carry out the will as stated. Some situations permit time limit extensions. However, once the assets have been distributed, no application for an extension can be granted.
Before the Court can make family provision orders, there are several things that they need to consider. These include:
- Testator’s last will
- Evidence of the testator’s reasoning behind the will’s terms
- Evidence of the testator’s intent
- The deceased’s mental and physical state during the will’s drafting
- Claimant’s character and conduct
- The deceased’s moral duty to the claimant
- Testator’s relationship with the claimant during the will’s creation
- Applicant’s current financial situation
- Claimant’s age
- Adequacy of the state’s distribution among the heirs
- Estate’s size, value, and liabilities
- Claimant’s contribution to building the estate
Contesting a will is not a simple matter. It requires extensive research and needs the claimant to prove that the deceased has committed a mistake when writing their will. However, if you feel you have been left out of a loved one’s will and you think you are entitled to an estate, it is crucial to talk to an experienced will and estate lawyer as soon as you can.
If you are looking for some of the best will and estate lawyers in Queensland, look no further than Springfield Legals. Our law professionals have the experience and knowledge to help our clients claim the inheritance they truly deserve. Call us today to learn about our “no win, no fee” policy!