Who can contest or challenge a Will and what is the process?
There are various reasons why someone would contest a Will however only certain people are entitled by law to contest a Will such as a person having an interest in an earlier Will of the deceased (the testator).
Under South Australian Law, it is stated that you must have had a specific relationship with the deceased to make a claim. For example:
• A spouse or former spouse;
• A domestic partner or former domestic partner;
• Children and grandchildren;
• and in some circumstances dependent step-children, parents or siblings.
Generally, all legal costs of the parties contesting a Will are paid by the assets of the estate.
What are the reasons to contest a Will?
There are 2 main ways to ‘contest’ a will which are:
1. Making a claim for provision to be made to you out of the estate:
One of the most common reasons to contest a Will is when someone believes their share in the testator’s estate is insufficient. There are various legal approaches that may protect a person’s entitlement to an estate before distribution occurs.
2. Challenging the validity of the Will:
For a Will to be invalid it would have to be proved that the testator lacked capacity to make the will or that they didn’t understand or know what the contents of the Will was. Other reasons the Will could be deemed invalid include the testator being coerced to sign the will, or if they didn’t sign it properly, if the Will was forged, or not witnessed correctly.
In any case, the above matters are quite complex and it is essential that you seek advice as soon as possible from an experienced Wills and Estates Lawyer. There are strict time limits that apply so you may lose the opportunity to make a claim or be successful.
If you choose to contest a Will you can speak with one of Andersons’ experienced Wills and Estates Lawyers today.
It is important to engage a professional who acts with the utmost integrity who is just as focused on getting you a just result as they are with trying to ensure the family relationship remains civil after the dispute has been resolved.
All circumstances are different so it’s important to get expert legal advice that is relevant to you.
