Who can contest or challenge a Will?
There are various reasons why someone would contest a Will however only certain people are entitled by law to contest a Will.
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, or a beneficiary under an earlier will.
What are the ways to contest a Will?
There are 2 main ways to ‘contest’ a will which are:
- 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 possible entitlement, to ensure that the estate cannot be distributed until the dispute is resolved.
- 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 know or understand the contents of the Will. Other reasons the Will could be deemed invalid include the testator being coerced to sign the Will, or if the Will was forged.
Disputing a Will on any basis is complex, and there are strict timeframes that apply. It is essential that you seek advice as soon as possible from an experienced Wills and Estates Lawyer. If you miss the time limitation date, you may lose the opportunity to make a claim.
What else do I need to know?
Often, all legal costs of the parties successfully contesting a Will are paid by the assets of the estate, but there are exceptions to this.
It is important to engage a solicitor who has experience in this area, and understands that you may be focused on a just result as well as trying to ensure that family relationships are maintained wherever possible after the dispute has been resolved.
All circumstances are different so it’s important to get expert legal advice that is relevant to you.
