If you feel you have been unfairly treated in the Will left by a loved one, you may want to dispute or contest the Will to try to get a fairer outcome. This can be a difficult decision to make, but if you have decided to go ahead, this is what you need to know.
Circumstances under which you can contest a Will
You are eligible to contest a Will if:
- proper provision was not given to you in the Will
- you were promised that you would be left a specific portion of the estate and that hasn’t happened
- a clear error or mistake was made in the Will and a court order is sought to correct that error
- the deceased was subject to undue influence in making the Will
- the deceased lacked capacity to properly make the Will
You will need to submit an application to the Court to contest the Will. Be aware there are strict time limits when this can be done (discussed further below).
Family provision claim
You are able to make a family provision claim if you feel you have unjustly been left out of the Will and you are either:
- a spouse (including facto spouse)
- child (including step-child)
- or were a dependent of the deceased (defined as “wholly or substantially maintained or supported by the deceased person” and a parent of the deceased, parent of a child of the deceased or a child under the age of 18 years.)
If you meet this criteria and wish to make a family provision claim, you will be challenging the Will and asking the Court to issue an order to properly provide for you from the estate.
Time limit to contest a Will
There are strict time limits for contesting the Will with a family provision claim.
Generally, you must advise the executor of the Will within 6 months of the deceased’s death that you are intending to make the claim. The court proceedings usually have to be filed within 9 months.
Under circumstances it may be possible to lodge the claim at a later date, but it must be done before the estate is distributed.
Issues with the executor of the Will
If you believe that the executor of the Will is not properly doing their duties, is acting improperly or has a conflict of interest, you are able to submit an application to the Court to have the executor removed.
The court will consider the mismanagement of the estate and the misconduct of the executor and decide if they see fit to remove them from the role. This is solely at the court’s discretion.
Who pays the legal fees
If making a family provision claim, usually the legal costs will be paid from the deceased’s estate. However, if the executor of the Will does not agree to this, you will need to apply to the Court in order for them to be paid from the estate.
Contesting the Will
The best way to contest a Will is to speak to a lawyer who specialises in Will disputes. We at GKE Lawyers are experts in the field of Will contesting and disputes. We have years of experience and have been through hundreds of Will disputes, so we know the process inside and out and are here to ensure you get the outcome you are looking for. To talk about your Will dispute, call us on 02 9958 2407 or email us on info@gkelawyers.com.au.
