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Contested Wills: Why, When & How to Deal If This Happens

The likelihood an Australian Will is contested is greater than you might think. What’s even more startling, is the high success rate of altered wills following a legal challenge; sitting at 77% for family provision claim contests alone. This process has the potential to rip families apart and spark years of costly litigation. For that reason, it’s important to understand why a will might be contested, when it might be appropriate for you to do so and how to navigate the ordeal if needed. Read on to gleam this understanding, and prepare you for the future.


Why wills are contested:

There are several claims a contestant can make to challenge a will in Australia. And, with 46% of Australians leaving their children unequal shares in a will, it's not all that surprising to find family provision claims at the top of the list. Representing a growing number of disgruntled family members, as well as a more informed population with increased access to complex legal information, the number of will contests is rising each year in Australia. Whilst the family provision claim is the most common reason for contesting a will, we list some of the other most common reasons below:

  • Lack of provision: If the person who made the will did not provide adequately for certain individuals or groups.

  • Lack of mental capacity: If the person who made the will was not of sound mind at the time the will was executed.

  • Undue influence: If someone exerted undue influence over the person who made the will.

  • Fraud or forgery: If the will is found to be fraudulent or forged.

  • Incorrectly executed: If the will is not executed in accordance with the requirements of Australian law, it may be contested.

Who can contest a will?

If any of the above are resonating with your concerns over a will, you may have a valid claim to bring to court. Whether your’e a related family member, a spouse, partner or someone with a ‘close personal relationship’ aka a good friend, you may be eligible to contest from lack of provision or other concerns. In making a ruling, the court will take into account your character and behaviour before and after death of the deceased, as well as any personal contributions towards the deceased’s assets or welfare.

How to contest a will:

The process of contesting a will can be a drawn out process, but with adequate legal support and valid evidence, the success rate is high. This is especially true for family provision claims, with 77% of challenged wills on this claim then subsequently altered in court. For all claims, it was recently found that this success range was 30-40%. Meaning that if you can endure the process, it’s likely you’ll see justice served. Below, we summarise the typical steps of contesting a will:

  • Obtain legal advice: Consult with a lawyer who specialises in contesting wills. They will be able to advise you on your chances of success and guide you through the process.

  • File a notice of contest: You will need to file a notice of contest with the court, outlining the reasons why you believe the will is not valid or that you have not been adequately provided for.

  • Gather evidence: Collect any evidence that you believe supports your case, such as witness statements or medical records.

  • Attend court: Attend court for any hearings or trial.

​​What happens next, when a will is contested?

If a will is contested, the court will hear evidence from all parties and make a decision on the validity of the will. If the will is found to be valid, the court will order that the assets be distributed in accordance with the will. If the will is found to be invalid, the court may order that the assets be distributed in accordance with the laws of intestacy (when a person dies without a will) or that a previous will be used. The Supreme Court will also rule on any ambiguities in language or intention which may make distribution interpretation subjective.

To Wrap Up:

Contested wills can be a complex and emotional process. But as much as it’s important to safeguard family peace, it’s also important to understand the process and your rights if you’ve been inadequately provided for, or believe that a will is invalid. This is especially relevant if you believe the deceased was coerced or taken advantage of after they lost capacity, as contesting the will offers an important opportunity to protect their assets. The main goal of the courts is to ensure the deceased’s assets are distributed fairly. So regardless of your concerns or potential claims, contesting a will can be an effective way realign the final distribution of assets with this wider fairness objective.

How Safewill can help

Safewill offers an easy and flexible platform from which to write and update your will. We provide expert legal support at each step of the way, and helpful tips to ensure the validity of your will, open up family communication and avoid future challenges to your will. To get started today, give us a call on 1800 103 310 , or via live chat now.

Last updated 27th January 2023
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Hannah Comiskey