Wills and Estates: What is the process to contest a Will?

Contesting a Will can be a very traumatic and difficult time for a family. When not only having to deal with the grief of losing a loved one, there may also be a need to resolve a legal dispute concerning claims on the deceased’s Estate.

A Will is the legal document that embodies the testamentary intentions of the deceased. The Will identifies the persons or organisations who are to benefit from the Estate and in what manner. On occasion however a family member, a dependent or other closely related person may be excluded from the Will. The Succession Actempowers the Court to make provision for such a person who has been excluded or otherwise not adequately provided for.

The Succession Act identifies who is an eligible person so far as contesting the Will is concerned. It includes:

  • The wife or husband of the deceased at the time of their death.
  • A person with whom the deceased was living in a de facto relationship at the time of their death.
  • A child of the deceased or a child for whom the deceased had parental responsibility.
  • A former spouse.
  • A person who was dependent upon the deceased or a grandchild of the deceased who was at the time of death or at any other time a member of the household of the deceased.
  • A person living in a close and personal relationship with the deceased at the time of their death

There is one year from the date of the death available to an eligible person to bring a Family Provision Claim otherwise they would be considered out of time and would thereafter require the leave of the Court to bring an application.

Once the eligibility of the applicant has been established the Court will consider whether adequate provision has been made for that person. In addressing this enquiry the Court considers a number of factors such as the nature and duration of that person’s relationship with the deceased, that person’s means and needs, any financial or non-financial domestic or caring contributions made by that person, the size of the Estate, the obligations of the deceased towards that party or beneficiaries, the age of that party, the character and conduct of that party before and after the death of the deceased and any other matters considered relevant by the court.

If these enquiries of the Court are answered affirmatively then the Court will consider what provision should be made for the eligible person.

Brydens Lawyers are experts in respect to the contestation of a Will, in acting on behalf of the Estate or the eligible person. If you or a family member has been left out of a Will and you wish to enquire as to whether you may have any rights to contest the Will, then contact Brydens Lawyers without delay on 1800 848 848 or at brydens.com.au.

Strict time limits apply with respect to the contesting of a Will so do not delay.

At Brydens Lawyers – #WE DO contesting of Wills, Family Provision Act claims and all matters concerning Wills and Estates.