Perth Contested Wills Lawyers
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Armstrong Legal’s Perth contested wills lawyers know that when a loved one passes away, there is often a will left behind, setting out what they want to happen with their estate and affairs. The deceased’s family and other people close to them often have expectations about what portion of the estate they will receive. Unfortunately, sometimes these expectations are not met. If a family member finds themselves left out of the will or inadequately provided for, they may want to consider contesting the will.
Contesting a will can be stressful and it is not always the best way of resolving the situation. However, if you are thinking of contesting a will, legal advice should be sought as soon as possible as strict time limits apply.
Challenging a Will in Perth
Challenging a will is different to contesting a will. When a will is challenged this means that the entire will is being questioned and someone is alleging that it is invalid. The consequence of successfully challenging a will is that probate will not be granted and the estate will not be distributed between the beneficiaries named in the will. However, generally, when a will is challenged, all parties will go to mediation and settle the matter outside of course.
In some cases the matter will go to court and each party will need to present their case. Once all cases are presented the court will make an order.
It’s possible to challenge a will on the following grounds:
Fraud in Perth
A will can be challenged on the ground that fraud occurred. This may be because there’s reason to believe that the will was tampered with or that all or part of the will is a forgery.
A will can be invalidated if it can be proven that the will-maker was coerced or pressured into writing their will in a certain way. Undue influence can occur in simple situations where a will-maker was simply pressured into distributing their assets in a way that did not reflect their true wishes.
Signs that there may have been undue influence include:
- changing bank access authorities;
- changes to power of attorney;
- the vulnerability of the will-maker such as age or illness.
Undue influence may also occur when there’s a power difference between the will-maker and another person such as:
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Lack of testamentary capacity
A lack of testamentary capacity will challenge is where someone is arguing that the will-maker lacked the mental capacity to validly make or change their will. Such a challenge could be based on the argument that the deceased wasn’t aware of the impact that the will could have on other surviving family members who had been financially reliant on them and relying on inheriting some of the estate. It may be possible to prove that the will-maker lacked the capacity to create a legally binding will using medical records that show the will-maker had a mental health disorder or intellectual disability when they created the will. If you would like advice on challenging a will, contact Armstrong Legal Perth contested estates lawyers.
Contesting a Will in Perth
When a person contests a will they dispute the substance of the will. This is often because the person contesting the will argues that it makes inadequate provision for them and that the allocation is unfair.
A will may also be contested because its provisions are impractical. An example of where a provision in a will may be impractical is where the will-maker has stipulated that they want a particular person to take over their business but the person is unable or unwilling to do so, or where money has been left for a particular purpose which is no longer able to be carried out in the way the deceased envisaged.
It’s important to get legal advice as soon as possible because under the Family Provision Act 1972 (WA) the time limit to lodge a claim is 6 months from the date that probate is granted.
Who can contest a will in Perth?
In Western Australia Section 7 of the Family Provision Act 1972 (WA) states that the following people are eligible to contest a will:
- a spouse or de facto partner of the deceased person;
- a person who was receiving maintenance from the deceased person;
- a child of the deceased who was living with the deceased when they passed; or who was born up to 10 months after the deceased’s death;
- a grandchild of the deceased who was being supported by the deceased at the time of their death; or who was living with the deceased;
- a stepchild of the deceased who was being supported by the deceased at the time of their death;
- a parent of the deceased who was recognised as such when the deceased was alive.
How to Contest a Will in Perth
If you’re an eligible person then the first step in contesting a will is to communicate your intentions to the executor of the will. Often the dispute can be resolved through negotiation. If that is the case, an agreement between you and the other party can be drawn up by your Perth Contested Estates lawyer. If you’re both happy with the agreement then you’ll both sign it and distribution of the estate will proceed.
If the dispute cannot be resolved through negotiations, your lawyer will notify the court that you are proceeding with a Family Provision Claim.
Family Provision Claims
Most Family Provision Claims are initiated by adult children of the deceased who think the will is unfair. When a person lodges a family provision claim they are arguing that they deserve a bigger share of the deceased person’s estate than what was left to them in the original will. An eligible person can also lodge a family provision claim if they were completely left out of the will.
When assessing the family provision claim the court will consider:
- whether or not the deceased person was required to provide for the applicant;
- whether the applicant received adequate provision during their lifetime;
- the applicant’s ability to provide for themselves; and
- the impact the claim would have on other beneficiaries of the will.
How our Perth Contested Estates Lawyers can help
If you are concerned about the validity or the fairness of a will, our contested estates lawyers can assist you. With their excellent negotiation skills, sensitivity and proven track record, Armstrong Legal’s Perth Contested Wills lawyers will simplify the process for you. You can contact them on 1300 038 223 or send them an email.