The grieving process affects everyone differently; for some people it can take many months or even years to feel as though life is getting back to normal after the loss of a loved one. So, the last thing you want during this period is to be embroiled in an argument with family or those close to the deceased over the contents of a Will if you feel you have been unfairly provided for. However, for some this is a reality.
Generally, the law recognises that the contents of a Will are the deceased’s wishes and that they had a right to decide on the way their estate would be distributed. However, the law also provides for circumstances where a Will may have been made unlawfully or where entitlements have not been properly granted.
Under what circumstances can I contest a Will?
Contesting a Will means, fundamentally, that the validity of the Will is being challenged based on the fact that the claimant believes the deceased:
- Made the Will under the influence of others;
- Did not possess the capacity to be creating a Will at the time it was signed; and/or
- Did not provide for them in their Will or that they are entitled to more from the estate than they received.
If a claimant believes that one or more of the above issues is applicable to their situation, there are a number of claims that can be made in relation to each belief. These include:
- Lack of testamentary capacity claim – this occurs when the claimant believes that the deceased did not have the ability to understand the obligations of making a Will and the implications their decision would have on their family members or other dependents. Making a lack of testamentary capacity claim means the claimant must be able to prove that the deceased did not possess the knowledge or understanding that was required of them to be able to make a legally binding and valid Will.
- Undue influence claim – this claim is made on the basis that the deceased was unduly influenced by a person or persons to sign a Will that did not reflect their intentions for their estate – it is also a particularly difficult claim to prove as the claimant will need to provide evidence that the deceased lacked the free will required to be able to make their own decisions.
- Testator’s family maintenance claim – this occurs when a claimant feels that they had a dependent relationship with the deceased prior to their death and that they were not adequately provided for in the Will. The claimant in this circumstance will seek to rely on that fact that a person creating a Will must make provision for the person for whom they are responsible and allow for proper maintenance and support of that person. There are factors to consider in these cases, including:
- The deceased’s moral obligation to provide for the claimant;
- Whether the claimant has sufficient means and capacity to provide for themselves;
- If the estate did, in fact, make adequate provision for the claimant; and
- How a successful claim would affect the other beneficiaries of the Will.
- Breach of trust claim – this type of claim is made when a beneficiary of a trust or Will asks the court to remove a trustee or executor who they believe has not or is not administering the trust or Will properly. The claimant may also seek compensation if they have suffered any financial losses on account of the trustee or executor’s wrongdoing.
Filing a claim to contest a Will
If you have reason to believe that you were not provided for adequately in a Will, you can file a claim to contest it but there are time restrictions.
In Queensland, you have 9 months from the death of the deceased in which to file a claim to contest their Will. Further to this, however, you have just 6 months from the date of the deceased’s passing to give written notice to the executor that you will be contesting the Will. After 6 months, the executor may commence distributing the estate. After this point, you may still contest the Will, but the process differs.
It is recommended that you seek the advice of a Wills and Estates solicitor who will be able to navigate this complex and often emotional area of the law for you.