Challenge a Will

How to challenge a Will

It is essential that you get legal advice as soon as you learn that you have been treated unfairly in a Will, or if you think the Will is not valid. You may need to lodge a caveat against an estate to ensure that probate is not granted. Once probate is granted, it is nearly impossible to challenge a Will.

The steps you need to take will vary, depending on the type of challenge you are making. Generally, the person contesting the Will needs to clearly set out the grounds and basis upon which they are contesting the Will. There is no guarantee that a challenge will be successful.

In all cases, you should try to resolve your claim or dispute informally through negotiation with the executor and the other beneficiaries. Most Will disputes settle outside of court. If you can reach resolution informally, the executor and the other beneficiaries will execute a Deed of Agreement that sets out the terms of the new arrangement.

If you can’t reach agreement informally, then you will need to file a court application. The court will make directions regarding the conduct of the challenge, which will often require the parties to participate in mediation under the supervision of a barrister. If a settlement cannot be negotiated at mediation, then the matter will go to trial and the judge will make the final decision.

Strict time limits apply to challenging a Will, so speak with one of our wills and estates lawyers in Cairns as early as possible.

Our team’s expertise means that we resolve the majority of Will disputes without the need for court. Our wills lawyers can also skillfully represent you in court if your matter goes to trial. We have won significant court cases on behalf of our clients.

Will your challenge be successful?

The success or failure of a Will challenge will depend on several factors, including:

• the circumstances upon which the challenge is brought
• the investigations that are undertaken to support the basis of the challenging
• the quality of the evidence that is prepared and presented, both during the negotiation and the trial phrase of the dispute (if it goes to court)
• the submissions that are made on your behalf during the negotiation and litigation phase of a challenge.

Getting Cairns Wills and Estates Lawyers involved early will improve your chances of success. Contact us to find out how we can help.