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Contesting A Will: Why, When, And 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 resonates with your concerns over a Will, you may have a valid claim to bring to court. Whether you're 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.

When making a ruling, the court considers various factors, including your character and behaviour before and after the death of the deceased, as well as any personal contributions you may have made towards the welfare or assets of the deceased. It's essential to understand the nuanced criteria and seek legal advice to determine the validity of your claim in contesting a Will.

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 further court proceedings. 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 involved 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 under 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 interpreting the distribution of the estate subjective.

This comprehensive legal review ensures a fair and just resolution in the circumstances of the aftermath of a contested Will.

Contesting a Will Due to Dementia: Understanding Your Options with Safewill

In Australia, the impact of dementia on a person's ability to create or update a Will is a matter of significant legal consideration. If you find yourself questioning the validity of a Will due to dementia-related concerns, it's crucial to understand the legal landscape and explore your options. At Safewill, we aim to guide you through this complex process, providing clarity on whether contesting a Will due to dementia is a viable course of action for your circumstance.

Legal Considerations in Contesting a Will Due to Dementia

Dementia, a condition affecting cognitive function, can raise concerns about an individual's capacity to make sound decisions, including those related to their Will. Contesting a Will on the grounds of dementia typically involves assessing whether the individual creating or amending the Will had the necessary mental capacity to understand the implications of their decisions.

When Can Dementia Be a Ground for Contesting a Will?

Contesting a Will on the basis of dementia becomes relevant when there are doubts about the testator's (the person creating the Will) mental capacity at the time of making critical decisions. It's important to note that the mere presence of dementia does not automatically invalidate a Will. However, if it can be demonstrated that the individual lacked the mental capacity to comprehend the nature and consequences of their decisions, contesting the Will may be considered.

Steps to Contest a Will Due to Dementia

  1. Gather Evidence: Begin by collecting relevant evidence that highlights instances or concerns about the testator's cognitive decline during the Will-making process.

  2. Consult Legal Professionals: Seek guidance from experienced legal professionals, such as those at Safewill, to assess the strength of your case and understand the legal options available.

  3. Initiate Legal Proceedings: If you believe you have a valid case, legal proceedings may be initiated to contest the Will. The court will then evaluate the evidence and make a determination based on the individual circumstances.

Why Safewill?

At Safewill, we understand the sensitive nature of contesting a Will, especially when dementia is involved. Our experienced team of legal professionals is equipped to provide tailored advice and support, ensuring that your concerns are addressed with empathy and expertise.

We are committed to demystifying the legal process, empowering you to make informed decisions regarding the contestation of a Will due to dementia-related concerns.

Your Rights, and the Process of Contesting a Will

Contesting a Will can be a complex and emotional process. 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 Court 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, 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.

Frequently Asked Questions

1. Are jointly owned assets considered in a Will dispute?

Yes, jointly owned assets can be a crucial aspect of a Will dispute. While joint assets typically pass to the surviving owner, they may still be subject to challenge in specific situations. Disputes may arise when there are allegations of undue influence, fraud, or if joint ownership arrangements are unclear. It's essential to seek legal advice to understand how joint assets might be involved in a particular Will dispute scenario.

2. What are the common reasons for contesting a Will, aside from a family provision claim?

Beyond family provision claims, common reasons for contesting a Will include concerns about the lack of provision, the deceased's lack of mental capacity during Will creation, undue influence exerted on the testator, fraud or forgery in the Will, and incorrect execution according to Australian legal requirements.

3. What makes someone an 'eligible person' for contesting a Will in Australia?

An 'eligible person' for contesting a Will in Australia includes family members, spouses, partners, and individuals with a close personal relationship with the deceased. This term encompasses a broad range, allowing those who believe they have not been adequately provided for or have concerns about the Will's validity to bring a claim to court. The court considers factors such as character, behaviour, and personal contributions to the deceased's assets or welfare when determining eligibility.

4. How long do I have to contest a Will in Australia?

In Australia, the time limit for contesting a Will is generally within 12 months from the date of the deceased person's death. This period is known as the "limitation period." However, there are circumstances where the court may grant an extension to this timeframe, such as when new information comes to light. It's crucial to seek legal advice promptly if you are considering contesting a Will, as exceeding the time limit can significantly impact your ability to file a claim. Consulting with a legal professional will help you understand the specific time constraints applicable to your situation and guide you through the process of contesting a Will within the stipulated timeframe.

5. How much does it cost to contest a Will?

The cost of contesting a Will can vary significantly based on various factors. Generally, legal fees constitute a substantial portion of the expenses associated with a Will contest. Legal costs depend on the complexity of the case, the extent of disputes among beneficiaries, the need for expert witnesses, and the duration of legal proceedings. Additionally, court fees, filing fees, and other related legal expenses contribute to the overall cost. It is advisable to consult with a legal professional to obtain a more accurate estimate tailored to the specific circumstances of your case.

Last updated 27th January 2023
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Hannah Comiskey
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