Do you believe you have been unfairly provided for, or not provided for at all in the Will? Our expert team of Will dispute lawyers are here to help you in this unfortunate situation.
Often, people challenge or contest a Will if they feel that it is inadequate. To do so you need the help of Will dispute lawyers like the estate planning team of JB Solicitors. This article aims to detail the reasons why Wills are disputed, and other aspects related to the topic including the importance of Will dispute lawyers.
A Will may be disputed for various reasons. The following section provides information on the various grounds on which they are commonly disputed or challenged.
Why Are Wills Disputed?
The main reason why a Will may be found inadequate or invalid includes:
- Lack of testamentary capacity
Testamentary capacity is a key requirement for a Will to be considered valid, legitimate and binding. It refers to the person’s mental ability to fully understand the Will that they are making, or amending.
There are a few things that can be checked in assessing if the person has testamentary capacity at the time of making the Will. It is said that the testator (maker of Will) has testamentary capacity if he/she comprehends:
- That they are executing a Will, and comprehends the affect of doing so;
- The nature and extent of their estate or property; and
- Whether they have any moral obligations towards family, and/or friends or any other external parties.
Moreover, the testator must have a sound mind at the time of executing the Will. This is because if it is later found that the testator had any mental incapabilities, or disorders – the validity of the document will be severely impacted in the future.
More importantly, Wills are challenged by people who believe that the deceased did not have the mental capacity to comprehend the consequences and thereby the Will does not reflect the true intentions of the deceased.
Will dispute lawyers gauge the situation carefully and help with proving the reasons why the Will should be set aside.
Who Can Challenge A Will?
If you are looking for Will dispute lawyers to challenge a Will, you need to first check your eligibility. Section 57 (1) of the Succession Act 2006 (NSW) lists the following ‘eligible persons’ who can make a claim on the estate of the deceased. These are:
- Spouse of the deceased at the time of deceased’s death
- Child of the deceased
- De facto partner of the deceased at the time of deceased’s death
- Former spouse of the deceased
- Person who was at any time wholly or partly dependent on the deceased , and additionally resided in the same household as the deceased; and
- Person who had a close personal relationship with the deceased at the time of their death
It is important to go over the eligibility criteria with your Will dispute lawyer in identifying whether you can make an application or not.
Once you have determined your eligibility, you need to apply for a Family Provision Claim with the help of your solicitor.
What Can Will Dispute Lawyers Help With?
If the Supreme Court of NSW determines that the deceased did not possess testamentary capacity at the time of executing the Will, the court will “set aside” the Will.
According to Section 80 of the Succession Act 2006 (NSW):
“The Court may, on application by any person, make an order authorising a Will or part of a Will to be made or altered, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity, or a Will or part of a Will to be revoked on behalf of a person who lacks testamentary capacity.”
What is most important in this matter is providing evidence that the testator lacked the mental capacity at the time he/she drafter and executed the Will. For this reason, you will need the support of experienced Will dispute lawyers and estate planning specialists.
Will dispute lawyers at JB Solicitors know that in considering such cases, the courts examine the entire circumstance. To make your case, our expert law specialists can help with:
- Speaking with medical staff who were assisting the deceased at the time;
- Reaching out to the estate planning solicitors who helped the deceased with his/her Will. In doing so, our solicitors will check if the estate planning specialists put in place any measures that could determine if the testator had testamentary capacity;
- Receiving opinions from the head doctor who was treating the deceased at the time;
- Speaking to all close associates of the deceased who would meet the deceased frequently at the time.
There are certain time limits that apply when making a Family Provision Claim. In NSW, you have 12 months from the testator’s date of death to dispute the Will.
Time Limits
- In Victoria, Australian Capital Territory, and Western Australia the applicant has six months from the date of probate grant to contest the Will.
- In Northern Territory, the claimant has 12 months from the date of Grant of Probate for the same.
- Tasmania has a short time limit with the applicant having only three months from the Grant of Probate to file a Family Provision Claim.
Will Dispute Lawyers: JB Solicitors
The expert team of Wills and Estate Planning specialists at JB Solicitors have a splendid reputation of helping clients reach their desired outcomes when contesting Wills.
We can advise you on the procedures, eligibility requirements, and time limits for each jurisdiction in Australia. Further to this, we will lead the legal process of contesting the Will by helping you file the Family Provision Claims and provide court representation wherever required.
This is a truly complex matter and we know the kind of stress that this adds. You must be reeling from the grief of losing someone, and adding to that is the stress of dealing with an unfair Will. Our compassionate solicitors are here for you.
Contact the best Will dispute lawyers today and have a discussion on your matter.
