Understanding the legal system after the death of someone close to you can be very challenging, especially if you’re facing the prospect of contesting a will. It can be an unpleasant shock after the death of a loved one if you’ve been left out of their final wishes or if it’s not what you were expecting. If you’re thinking about contesting a will, then you should know that although it may seem overwhelming, most cases can be resolved quickly and usually won’t need to go to court. Here’s what you need to know:
When is contesting a will possible?
You should know that every state and territory in Australia has its own set of laws and rules around dealing with your loved ones’ final wishes, but the way that contesting a will is managed is fairly similar countrywide.
Contesting a will is usually possible if;
- You have been excluded entirely or not adequately provided for in the document
- If it was prepared based on the undue influence of another person
- If the provisions in the document are unclear
- If you don’t think that it is the most recent document
- If it seems like another person may have fraudulently changed it
- If the person who wrote it was not mentally capable
Different states will have different timeframes for contesting a will, you’ll need to make sure you lodge an application within the right amount of time. If you’re planning on lodging an application it’s a good idea to seek proper legal advice as the legal issues can be very complex and the time limits can make it challenging. As soon as you think you want t make an application to the court you should look for legal advice as a good lawyer will be able to help you and make sure you’re on track to meet timelines, they’ll also be able to help you understand the law and what you can expect when contesting a will.
Who can contest a will?
Not everyone is eligible to contest a will. If you’ve been left out or you’re unhappy with the provision you’ve received, you’ll need to make sure that you qualify to challenge it. Usually, challenges are brought forward by children or spouses but other people may also challenge it. If you’re not a child or partner of the deceased then you should seek advice about whether or not you’re eligible to bring a challenge.
What you need to know about probate
Probate is an important part of contesting a will. Probate is the process when the document it lodged to the supreme court and validated. Before you can challenge a will, probate will need to be granted. However, if you’re problem pertains t the validity of the document then you will want to challenge before probate is granted. If you don’t believe the contents of a deceased document are valid then you’ll need to act quickly before probate is granted as it will become much harder to challenge once it is assumed to be valid.
There will be several factors taken into consideration when considering whether a challenge will be relevant. The main considerations being what kind of relationship you had with the deceased and how long you had a relationship with them, whether they had any kind of responsibility towards you, what your financial needs are, and whether or not you have contributed anything towards the deceased estate. Your age and other personal details may also be taken into account. The process of challenging can seem overwhelming but it often doesn’t require more than mediation.