Published: 5 July 2012
Author: Michael Burdess
Contested Wills - what to bear in mind
Part 1: Do I have a case?
Most people are rightly reluctant to challenge another person's Will. Challenging or contesting a Will is not that difficult and there are many Wills or Probate lawyers, including lawyers who speclize in challenging Wills, who will urge clients into premature action.
My view is to hasten slowing in fighting a Will, while bearing in mind that the time limits within which a Will may be challenged. This time limit is six months from the Court's granting of Probate, which means that the Court has established that the Will is a proper and authentic document.
Over two blogs, I will discuss some of the factors you should keep in mind if you are considering challenging a Will.
On what grounds can a Will be challenged?
The Victorian legislation is governed by the Administration and Probate Act 1958. Disputes and claims on a Will are generally made when someone, a dependant, for whom the deceased had taken responsibility, is either overlooked or inadequately provided for.
In my experience, these are some of the typical circumstances under which a Wills claim arises:-
1. Time has overtaken events - where the Will of the deceased was made a long time ago and does not take into account current relationships, say a new partner, relatives or a full time carer.
2. Gold diggers - They do exist. Siblings or children may find themselves cut out when a new Will has been made in favour of a new partner in the few years leading up to the death.
3. Neglected non-family members - This occurs when a Will does not take into account someone that is not a family member but who has cared for or had a very close relationship with the deceased. Sometimes this may be a neighbour or friend who has become a carer.
4. Last minute disfavour - when a Will is changed to cut out a sibling, spouse or child due to some real or perceived slight in the deceased's dying days.
5. The "Family Farm" Will - as occurs when everything is left to the eldest son or males only, cutting out other children.
6. The special needs of a beneficiary - where a sibling or an offspring with a disability requiring intensive care, for example, has to share equally with others. Under these circumstances, the Court may award the person with a disability a greater share.
If any of the above circumstances apply to you, you may well have a case to mount.
In my next blog, I will outline the process and what you need to keep in mind should you be considering making a challenge.