Published: 9 July 2012
Author: Michael Burdess
Contested Wills - what to bear in mind
Part 2: How to make a decision and proceed
The most important limiting factor in challenging or making a claim on a Will is the time limit. Once Probate has been granted, you have six months in which to decide whether or not to challenge a Will.
You should also bear in mind the affect that your challenge may have on other family relationships. Form a view about that, then consider it again before making a commitment. It is a big step that often has an irrevocable impact on relationships.
You may actually be a beneficiary of the Will but this needn't stop you contesting it should you consider that you have been treated unfairly or unequally.
It is important to consider that the well-meant advice you receive from family or friends may be incorrect. If you have any doubts, you would be well advised to seek a legal opinion.
Finally, bear in mind that the Courts do not intervene lightly in modifying the provisions of a Will. They will only do it if there is a clear and reasonable claim.
What is the process?
Cases are issued in the Supreme Court but most will resolve through negotiation at a Court ordered mediation.
The most important thing is to seek advice as soon as you are aware that you have been left out or inadequately provided for. There is only a six-month period once the Court has granted Probate to make a claim. Extensions of time can be applied for but this is risky and costly.
If there is a clear case, the representatives of the estate may meet early on to discuss. If there's a real fight, it will go to mediation.
Evidence is given by way of affidavit. The applicant and representatives of the estate and the beneficiaries do affidavits in response.
Wills can be successfully challenged but you should consider all the circumstances and seek legal advice sooner rather than later.
A final note: I have only canvassed issues relevant to challenging or fighting a valid Will. However, should you believe a Will to have been made under duress, by fraud or while the deceased once mentally disturbed, you have a perfect right to object to the Court granting Probate. But that's another story.