People often use the terms “contesting” and “challenging” a Will Australia when having a dispute about Wills. A person contests a Will when he/she is left out of a Will or treated unfairly in a Will. On the other hand, challenging a Will means a person is questioning the Will’s validity.
This is usually the case when the Will-maker (testator) doesn’t have the capacity to write a Will, or was forced to make or change their Will. Another reason to challenge a Will is when someone else forged the Will without the Will-maker’s consent. These are various reasons for challenging a Will in Australia.
It’s important to have a valid Will, especially when beneficiaries depend on the testator’s assets and property for financial purposes. However, it’s possible that there are people who want to invalidate a Will for their own personal gain. This article discusses how challenging a Will in Australia works.
What is a Valid Will?
Think of this legal document as the representation of a deceased’s best wishes and intentions for his assets and property. Anyone over the age of 18 can make a Will, regardless of their social, financial, or economic status in life. Executors handle the distribution of a Will’s assets and properties to the proper beneficiaries. A valid Will requires the testator to:
- Write the Will;
- Sign the Will;
- Have an understanding and mental capacity to write;
- Include two witnesses to see the testator signing the Will; and
- Have the two witnesses also sign the Will.
People over 18 are qualified to act as a witness. It’s important to know that beneficiaries or the testator’s spouse cannot act as witnesses. According to the Succession act 2006 NSW, witnesses must have the capacity to witness a testator signing a Will. People must review these requirements before challenging a Will in Australia.
Challenging a Will Australia: The Will’s Content
Challenging a Will in Australia requires people to look into its contents first. After all, these people would want to make sure that its contents are worth disputing. It’s also highly recommended that people who want to challenge a Will seek advice from a lawyer. A Will’s contents typically have the following:
- Executor, additional executors, or alternate executors in case the original one dies
- Specific gifts and heirlooms
- Exact monetary assets and who receives them
- Who receives the estate and the exact percentage or number for each beneficiary
- Beneficiaries under 18
- Trust monies
- People appointed with powers of attorney (People who handle financial or medical matters in case the testator becomes incapacitated)
- People acting as the guardian of the testator’s children
- Funeral instructions (cremation, aquamation, or burial)
- If the testator wants his organs donated
- Any bequests or legacies (any kind of donations to organisations)
Family Provision Claims
While state laws and regulations vary from state to state, Australian states will have laws on who can challenge a Will. Family members wanting a larger share of the deceased’s estate must file a family provision claim to the Supreme Court of NSW.
It’s important to file a family provision claim within 12 months of the deceased’s death. Additionally, it’s not necessary to obtain a grant of probate or a grant of letters of administration to file this document. People who can file for a family provision claim are the:
- Spouse of the deceased;
- De facto partner of the deceased;
- Children or adopted children of the deceased;
- Former spouses of the deceased;
- People financially dependent on the deceased or living with him/her; and
- People who have close personal relations with the deceased.
Possible Reasons for Contesting and Challenging a Will in Australia
The urge for immediate gratification is the need to enjoy or find fulfilment without waiting or postponing something.. Some people will want to challenge a Will because they want the testator’s assets immediately.
The Complexities of Modern Family Life
Sometimes, people contesting a Will in Australia come from blended families. This results in family members needing greater financial needs from possible assets and property from the testator. A lot of people want to inherit properties to meet proper living conditions.
The elderly are very prone to abuse, especially if they are forced to write a Will under somebody else’s terms and conditions. People with powers of attorney may use their ability to abuse financial or medical matters while forcing someone to write a Will.
Sense of Entitlement
Some people may also feel that they should receive more of the testator’s assets and property. However, we should also give them the benefit of the doubt if they really are deserving of receiving these assets and shares. That’s why it’s important to seek a lawyer in case people want to prove that they are worthy of receiving assets and shares from the Will.
The Testator Has Dementia or Alzheimer’s Disease
Dementia and Alzheimer’s disease are particularly common among elderly people. Testators with these conditions won’t even understand what or how to write a Will. Hence, testators with these conditions may not have the capacity to write a valid Will.
The term “testamentary capacity” describes the deceased person’s mental state at the time they write their Will. The testator must have a sound mind, memory, and understanding to validate this document. It’s possible to disregard a Will if courts find that the deceased lacked the testamentary capacity to make a Will.
The Testator Used a DIY Will Kit
DIY Will kits are online documents that provide templates for testators. However, these online kits won’t really provide the exact wishes and intentions of a testator. Moreover, these online kits may not be up to date with changing state laws and regulations. Wills made without proper legal advice, are a ticket to disaster and will definitely cause disputes.
Importance of Seeking Legal Advice
Challenging a Will in Australia will pose many consequences, especially when one is not equipped with the right legal advice. Truly, some people may have the rights, qualifications, and reasonable grounds to challenge a Will. However, they may not know of any legal implications they may face without the help of JB Solicitors. Our team of lawyers are experienced in the field of Wills and Estate planning.
We understand that it’s stressful to challenge or contest a Will, so it’s important to have the best legal advice. Additionally, we can also provide advice on how to draft a legally binding Will that follows state laws and regulations. People who also want to update their Wills can seek advice from our team in case there are any changes in their circumstances.
Contact JB Solicitors today for your Wills and Estate planning matters.