Canberra Contested Wills Lawyers
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When a person dies, they often leave behind a will. This is a document that sets out their wishes for how their estate should be divided between their loved ones. The law governing wills and estates is different in every state and territory, In the ACT, it is set out in the Wills Act 1968.
There are various technical requirements that must be met for a will to be valid. For example, the will maker must generally be over the age of 18 and they must have testamentary capacity. Testamentary capacity is the mental and emotional capacity to write a will. If these requirements are not met, the will’s validity may be challenged in court.
If a person does not have a will when they die, then they die intestate, which means someone else must decide how their possessions and assets are dealt with. This may be decided by the family members amongst themselves, or an order may be made by a court.
Sometimes when a family member dies, their loved ones have expectations as to what portion of the estate they will receive. If these expectations are not met or if they are left out of the will entirely, a dispute may arise. This can lead to the will being contested in court.
If you are in the position of contesting or defending a will, our Canberra contested wills lawyers are here to assist. They’ll provide comprehensive advice so that you can make the best decisions knowing all the options available to you.
Phone(02) 6288 1100
Suite 2, Level 6 17-21 University AvenueCanberra,2601
Challenging a Will in Canberra
Challenging a will is different to contesting a will. When a person challenges a will, they are arguing that the will itself is invalid. This may be because they believe the will was prepared under undue influence, that fraud has been committed, that the will is a forgery or that the testator lacked testamentary capacity.
Before you challenge a will, you need to establish if there has been a grant of probate. A grant of probate is a legal authorisation from a court that the executor of the will can divide the assets between the beneficiaries. If probate has not been granted, then you must file a probate caveat, which will prevent the granting of probate. If probate has been granted, a person can proceed to challenge the will.
A person who is provided for in a will, and believes the will was made validly, can defend the will. When defending a will, a person must give evidence in support of their claim that the will is valid.
Whether you’re contesting or defending a will, our Canberra contested wills lawyers can help you every step of the way. They will negotiate with the other parties on your behalf, and if they are unable to reach an agreement, they will advocate for you in court.
Wills can be challenged on any of the following bases.
A person challenging a will on the basis of undue influence is arguing that the will maker was coerced into dividing their state in some way. This may have occurred through the use of threats, deception, blackmail, bribery or flattery.
Undue influence is difficult to prove, and the burden of proof falls on the person bringing the challenge. For further advice on challenging a will please contact Armstrong Legal’s Canberra contested estates lawyers.
Lack of Testamentary Capacity
A will can also be challenged on the ground of lack of testamentary capacity. This means that the challenger believes that the will maker did not have adequate mental capacity to validly make or alter the will. This may be because they were suffering from dementia, were under the influence of alcohol or a drug, or had an intellectual disability.
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Forgery and Fraud
A will may be challenged on the basis of fraud or forgery. This may be because the person challenging the will is arguing that the document was created and signed by someone other than the deceased, or that the will has been altered after it was signed.
If you require legal advice about challenging a will on this ground, please contact Armstrong Legal Canberra Contested Wills lawyers.
Contesting a Will in the Australian Capital Territory
Contesting a will is different from challenging a will. When a person contests a will, they are disputing that the provisions of the will are fair and arguing that the deceased estate should be distributed differently to how the testator envisaged.
To contest a will in the ACT you must start proceedings within 12 months of the date that probate or administration was granted. It is generally advisable to initiate proceedings as soon as you can because assets can be sold and funds can be spent, reducing the likelihood of your claim being successful.
Who can Contest a Will in Canberra?
In the ACT you must be an eligible person to contest a will.
An eligible person, as described by Section 7 of the Family Provision Act 1969 is:
- a partner of the deceased person;
- a person who was in a domestic relationship with the deceased person for two or more years continuously at any time;
- a child of the deceased person;
- a stepchild of the deceased person;
- a parent of the deceased person.
What Claims Can be Made on Wills?
You can make various claims on a will. However, the most common claim made is a Family Provision Claim.
Family Provision Claims in Canberra
When a person makes a Family Provision Claim, they are arguing that they are inadequately provided for in the deceased person’s will. To lodge a Family Provision Claim, you must demonstrate that you are in need and should have received a bigger portion of the estate.
When determining a Family Provision Claim, the court will consider various factors, including:
- your relationships with the deceased person.
- the size of the deceased person’s estate.
- the claimant’s financial position and if they’re supported by anyone else.
- other claims on the estate.
- whether or not anyone else is supporting the claimant.
- current and future financial needs.
Give our contested estates lawyers a call on 1300 038 022.
How can our Canberra Contested Estates Lawyers Help?
Dealing with the loss of a loved one can be devastating and this is made even harder when there are legal issues to be resolved. Our Contested Estates Lawyers are sensitive and experienced professionals who can guide you through the legal process and ensure you emerge from it with the best possible result.
Contact our dedicated Canberra contested estates lawyers today on 1300 038 223 or send us an email.