A deceased person communicates their last wishes through a will. This legal document instructs how a testator wishes to distribute the wealth they have accumulated in their lifetime. However, there is no such thing as an air-tight will.
Over 50 per cent of wills in Australia are challenged. Concerned parties hire wills and estate lawyers to contest a will when they see discrepancies, lapses in the interpretation, or believe they deserve more than what’s provided in the will.
If you seek to contest a will, here are the things you need to do:
Check Your Eligibility as a Claimant
Australian law dictates that anyone with close relations with the testator is eligible to challenge their will. The most common contesters are spouses, de facto partners, children, and other family members.
Testators can leave legacies to friends, household members, and financial dependents without primary or secondary relationships with them. Bequests make these people eligible claimants, especially when the deceased family members question the will’s provisions.
Get a Wills and Estates Lawyer
Although you can challenge a will without a lawyer, making arguments and proving your claim’s validity in court can be difficult. For best outcomes, you need a lawyer to challenge a will successfully.
However, before you employ a lawyer to assist you legally, you may want to consider a few things. You need to check if they are working independently or with a firm, how they receive compensation, and most importantly, if they specialise in wills and estates law.
Determine the Most Appropriate Claim Type
There are two ways to contest a will. You can either contest its validity or the provision left to you.
Contest of Validity
Challenging the will’s validity calls into question its authenticity and how it was made. Reasons to contest a will’s validity include many factors depending on the situation.
It could be a doubt to the testator’s mental capacity when the will was made or the suspicion that they were unduly influenced to distribute their legacy the way they did. Moreover, it could also be belief that the executed will is a forgery or disbelief that the will was properly witnessed.
Family Provision Claim
Family provision claims challenge the distribution of inheritance among the beneficiaries. You could file for this claim if the testator left you with inadequate provisions, especially compared to other beneficiaries. It is also applicable if you think you were unfairly left out of a deceased’s will.
Notify the Executor of the Estate
Executors of the Estate carry out the last wishes of the departed. Typically, they are lawyers who helped draft the will, accountants, or family members.
When you contest a will or apply for family provision, you have to notify the executor immediately through a letter of claim. If the executor does not receive any notice six months after the testator’s death, all provisions will be distributed as stated in the original will.
File Your Claims
Once you have determined the most appropriate claim type, it is time to file them. The necessary documents and the process the claim goes through will vary depending on the type of claim you choose, whether it’s a contest of validity or a family provision claim.
The steps above only show the beginning of the legal battle when challenging wills. The legal road after this is more treacherous. That is why you need a wills and estates lawyer to fight alongside you.
If you require experienced wills and estates lawyers in Springfield, QLD, look no further than Springfield Legals. Since 1999, we have provided top-notch legal services to help people assert their rights, protect their bequests, and claim the legacy they truly deserve. Contact us today and ask us about our no win-no fee policy!