Contesting a Will

There are many types of estate disputes that can arise after a person dies. These typically include challenges to the validity of a Will, disputes over the interpretation of the terms of a Will, claims for provision from an estate, and challenges to the appointment of an executor. Each type of dispute requires a specialist approach, and it is important to work with a lawyer who has experience in this area to ensure the best possible outcome.

Claiming provision from an estate

One of the most common types of estate disputes that we help clients with is making (or defending) a claim for provision from an estate, also referred to as contesting a Will or making a testators’ family maintenance claim.

To make a family maintenance claim in Victoria you need to be an eligible person which may include a current/former spouse or domestic partner, child, stepchild, or grandchild of the deceased. This definition can also include other categories of claimants and they must also satisfy other legislative requirements. Strict time limits apply for making family maintenance claims, so it is important to get prompt legal advice regarding your eligibility and the prospects of succeeding with your claim.

The basis of a claim will be that the deceased person had a responsibility to provide for the claimant’s proper maintenance and support and failed to do so. Various factors will be considered in determining the merits of the claim, which may include:

• the obligations that the deceased had to the claimant
• any obligations or responsibilities the deceased had for any other person who could bring a claim and the beneficiaries
• the deceased’s Will, or other evidence of their intentions, including reasons why the claimant was not included or provided for further
• the relationship between the deceased and the claimant
• the size of the estate and the liabilities of the estate
• how other beneficiaries will be impacted by the claim if it is successful

Is the Will valid?

A Will may be challenged because the person who made it did not have the mental capacity to understand what they were doing, or that they were unduly influenced by another person. It may also be challenged if there are concerns about the authenticity of the Will or how it was executed, such as the absence of witnesses or signatures.

Ambiguous terms of a Will

Disputes over the interpretation of a Will can arise when there is ambiguity or confusion about the meaning of certain clauses. This can be particularly challenging when a Will is poorly drafted or contains conflicting provisions. This is typically seen in do-it-yourself Wills. A lawyer can assist with interpreting the language of a Will and the testator’s intentions.

Executor challenges

Challenges to the appointment of an executor can arise when there are concerns about their suitability for the role, or if there are conflicts of interest. It is important to work with a lawyer who can advise on the process for challenging the appointment of an executor and can assist in putting forward an alternative candidate.

Getting help with your estate dispute

No matter what the legal dispute involves, when families disagree after somebody has passed away it can be a complex and challenging time for all. While the dynamics of all families are unique, the first step in resolving an estate dispute is to understand the legal issues involved and to obtain advice from an experienced lawyer. We can guide you through the legal process involved and advise on the potential outcomes of pursuing or defending a claim against an estate. In most cases, these disputes can be resolved through mediation or negotiation, without resorting to litigation. However, when a dispute cannot be resolved through these methods, it may be necessary to seek the authority of a court to settle the matter.

If you need help, contact [email protected] or call 03 8672 7510 for a confidential discussion with one of our friendly and experienced  lawyers.