When a family member passes away, they often leave behind a will setting out what they want to happen with their estate, their funeral and other matters. People close to the deceased will often have expectations in relation to what they will receive. Unfortunately, sometimes those expectation are not met and one or more family members may find themselves inadequately provided for or left out of the will entirely. When that occurs, family members may find themselves contemplating contesting the will. If you are going to challenge or contest the will then you need to contact a Melbourne contested wills lawyer.
Contesting a will can be stressful and can place strain on the whole family. There are also strict time limits that apply to contesting wills so its important to talk to a lawyer as soon as possible if you are thinking about contesting a will.
Our Melbourne Contested Estates lawyers deal with wills and probate matters every day. They can give you sensitive and professional advice that allows you to make the best decision for your circumstance.
Challenging A Will
Challenging a will and contesting a will are two different things. If a person challenges a will they are arguing that the will is invalid and that probate should not be granted. Probate is granted when the court has agreed that the will is valid and the assets can be distributed amongst the named beneficiaries.
A will can be challenged in the following situations.
A will can be deemed invalid if fraud can be proven. Fraud can take many forms. The will may have been written but altered after it was signed, or the entire document may have been falsified. If you challenge a will on the ground of fraud you will need to supply evidence. This may involve enlisting the services of handwriting experts.
Undue influence occurs when a will maker is manipulated, deceived or otherwise coerced into leaving a significant portion of their estate to a person, or excluding a person from their will. Undue influence can be difficult to prove and the burden lies with the challenger. The challenger must be able to supply proof that the final will was not an accurate representation of the deceased person’s true desires.
Undue influence can be proven if evidence can be you can supplied that the will was made under suspicious circumstances. Suspicious circumstances may include:
- increased reliance on one person;
- changes to power of attorney;
- vulnerability of the will maker;
- revisions to bank access authorities.
Undue influence could also occur when there is a power imbalance between the will maker and a second party, such as:
- religious leader/member
Lack of Testamentary Capacity
When a will is challenged on the grounds of lack of testamentary capacity, someone is arguing that the will maker did not have the mental capacity to make or change the will. An argument that you may present would be that the deceased person didn’t understand the ramifications their final will would have on other surviving family members or those who were financially reliant on them. An example would be that the deceased was intellectually disabled and did not have had the mental capacity to make a will and therefore the will should be invalidated.
To succeed in this argument, you will need proof such as medical records that show that the person could not create a legally binding will.
Armstrong Legal’s Melbourne contested estates lawyers can provide advice about challenging a will based on lack of testamentary capacity.
Contesting A Will
When a person contests the will, they are agreeing that the will is valid but disputing the distribution of the estate. Will contests often arise because one or more family members feel the estate was not distributed fairly. A will may also be contested because money was left for a particular purpose that is no longer relevant or practical, and family members cannot agree about what should be done with this money instead.
In Victoria, a person has only six months from the date probate is granted to initiate proceedings contesting a will. If you think you have grounds to contest a will, you should seek legal advice as soon as probate has been granted. You can contact the Supreme Court of Victoria to check if Probate has been granted.
Who Can Contest a Will?
The Administration and Probate Act 1958 (VIC) outlines that only an eligible person can contest a will. An eligible person as per Section 90 of that act is:
- a spouse or de factor partner of the deceased at the time of their death;
- a child or stepchild of the deceased who at the time of the deceased’s death was under 18 or a full-time student aged between 18 and 25 or a child with a disability;
- a person who for a significant portion of their life thought the deceased was a parent and was treated by the deceased as a natural child at the time of the deceased person’s death and is under the age of 18, a full time student aged between 18 and 25 or a child with a disability;
- a former spouse or domestic partner who was in the process of taking proceedings against the deceased person and can’t finalise them because of the deceased person’s death;
- a registered caring partner of the deceased;
- a grandchild of the deceased; or
- a person who was a member of the household of the deceased at the time of their death.
How To Contest a Will
If you are eligible to contest the will, the first step is to determine whether probate has been granted. If Probate has been granted, then you should communicate your intentions to the executor of the will. In the majority of cases, the dispute will be resolved at this stage in which case an Armstrong Legal Melbourne contested estates lawyer can draft an agreement for you. If you and the other parties are happy with the agreement then you can sign it and the asset distribution will commence.
If you are unable to come to an agreement and decide to commence court proceedings, you or your lawyer will need to inform the Supreme Court that you are lodging a Family Provision claim.
Family Provision Claims
In the majority of cases a will is contested by a Family Provision Claim. The majority of these claims are brought by adult children of the deceased who believe that the will is not fair.
A family provision claim is an argument that a person deserves a larger portion of the deceased person’s estate. A person can also lodge a family provision claim if they are an eligible person who was excluded from the will – for example, a stepchild of the deceased person who was not included in the will or an estranged child who believes they are still entitled to a share of the state.
When determining whether or not the family provision claim is valid the court will consider:
- if the deceased person had an obligation to provide for the applicant;
- whether the deceased person adequately provided for the applicant while they were living;
- the applicant’s ability to provide for themselves;
- the applicant’s intentions for the estate; and
- the impact the claim would have on the other beneficiaries of the will.
How Our Lawyers Can Help
If you think that a person has been inadequately provided for in a will, our Melbourne contested estates lawyers can assist you. Our team will determine whether there is a valid claim that can be made and advise you on all the possible outcomes
Armstrong Legal’s Melbourne contested estates lawyers will handle negotiations on your behalf using their experience and expertise to make the process as smooth as possible for you. They can be contacted on 1300 038 223 or you can send an email.
WHERE TO NEXT?
Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?