While the courts will always want to honor the wishes of a deceased person, especially what he or she wrote in their Will, issues concerning contesting a Will are not uncommon. However, before you think about contesting a Will, you have to understand that it may not be easy because you must have a basis to do so. There is also a lot involved in contesting a Will in terms of navigating the legal system. Therefore, being Will-savvy will come in handy whenever you want to contest one and here are 3 key details to fill you in.
Are You Eligible to Contest a Will?
Not everyone can contest or challenge a Will so the first step in contesting one is finding out whether you are eligible to do so. Usually, only individuals closely related to the deceased are eligible to contest the Will. This includes spouses, former spouses, de facto partners, children (in some cases step children), and grandchildren. People who lived with the deceased and were in close personal relationships with him or her and those who are members of his/her household and were dependent on him/her can also be eligible.
It is important to understand that if you are ineligible, you won't have the entitlement to contest the Will. However, you may still be able to present any disputes concerning the Will but it is advisable to consult a lawyer first.
Under What Circumstances Can You Contest a Will?
Being eligible to contest a Will doesn't automatically grant you the ground on which to contest it. The courts will consider some factors to determine whether you have a basis for challenging the Will. For instance, if at the time of drawing the Will the deceased lacked the understanding or mental capacity needed to do so, the Will can be contested. Any evidence suggesting that the Will was tampered is also ground for contesting. You can also contest a Will if you have evidence that it wasn't the final Will that the deceased drafted. If you feel the Will is unfair in terms of the provisions made to you, you can also contest it. Last, you can contest the Will if the deceased acted under duress at the time of drafting it.
When Can You Apply?
There is a time limit within which you need to submit your application to the court for contesting the Will. This may vary across states so you need to seek legal advice as soon as possible. In the event that this time elapses before you submit your application, perhaps because you were unaware of either the death or these time limits, seek legal advice as early as you can. The court may be able to consider your explanation for lodging the claim late. However, your reasons have to be valid.
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25 May 2017
I love watching legal dramas from all different countries. I often call up my friend who is a lawyer to ask her about whether the cases I have seen on the latest drama are realistic or if they wouldn't happen that way in Australia. It's so interesting to me to see the changes that they make to make the stories flow more convincingly as well as the differences between the law in Australian compared to other countries. This blog is for other fans of legal dramas like me and has some tips on the best places to get real legal advice (hint, it's not on the TV!).