Question of the week- Friday 12th February – What is the process to challenge a Will?

As most of us would be aware a Will is a relatively simple yet important document which sets out the terms upon which we would like our estate distributed following our passing. Generally, the wishes of the deceased are fulfilled, and the estate will pass as prescribed under the Will. However, that is not always the case.

A Will can be the subject of a legal challenge. The reasons for same would include:

• The person challenging may have been excluded from the Will or alternatively, be of the belief that they have not been adequately provided for under the Will;
• Concerns that the person who made the Will did not have capacity to do so;
• That the person making the Will was under the undue influence of another person when making the Will.

If it is a case of challenging an entitlement under a Will as opposed to challenging the capacity of the Will maker, then the court will take into account a number of factors to determine whether the challenge is successful. These will include:

• Whether you are an “eligible person” as defined under the legislation. That is, you cannot be any person who seek to challenge another person’s Will.
• Whether you can establish a financial “need”. A consideration of your own financial circumstances will be undertaken as will the size of the estate that is being challenged. The respective claims of others will also be brought into account.

There are also a number of other factors that the court will consider in connection with any challenge to a Will. This would include the nature of the relationship that you had with the deceased, any contribution that you may have made to the estate as well as any physical, intellectual or mental disability that you may have which requires particular financial support.

The challenging of a Will can be a difficult and complex matter. Rarely will such a challenge not be met without a strenuous defence by the representative of the estate. A challenge may require protracted court proceedings which raises concerns with respect to the legal costs to be incurred. Ultimately, if it is determined, that the challenge to the Will had merit, even though unsuccessful, the court can still order that the costs of the unsuccessful challenge be met out of the estate.

Challenges to a Will can settle as between the parties. Should the beneficiaries and legal personal representative of the estate come to the view that a settlement of the challenge would best serve the interests of the parties, then such a claim can be resolved amicably.

Brydens Lawyers are experts in the advising of and acting in relation to persons who believe that they have been unfairly excluded from or treated unfairly in a Will. For all legal advice concerning a challenge to any Will or any matter pertaining to Wills and Estates, contact the experts at Brydens Lawyers on 1800 848 848 or at brydens.com.au. Brydens Lawyers – #WE DO Wills and Estates.