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What You Need to Understand Before Challenging a Will

If a member of the family or your loved one has recently passed away and you feel that there is something wrong with the will that has been left behind, then it may be grounds for challenging their will or contesting it in court.

A will, commonly referred to as last will and testament is a legal and binding document that lays out how a person who created the will wants his or her estate to be left prior to their death. The assets include property, money, savings and possessions.

What grounds can I challenge a will?

Although each state and territory differ on laws regarding wills, the conditions where a legal will can be contested are alike. The reasons that a person or party may challenge a will include:

  • The will was not correctly executed.
  • Family members are not adequately provided for in the will.
  • The executed will was not the final will that was created by the deceased.
  • A person has influenced the creator of the will.
  • The mental understanding or capacity of the will maker was questionable at the time of the will’s execution.
  • Evidence of will tampering.

If you believe any of the above to be true, then this is a good starting point to challenging a will.

There are online resources such as http://www.challengeawillnsw.com.au that offers online assessment at no cost to see if a case warrants a legal dispute. What’s more, they offer a no obligation follow-up assessment.

What can I do against an unclear will?

Challenging a will that is well-written, specific and clear is unlikely to succeed in court unless you find tampering or evidence of influence from another person. Courts rarely interfere with the wishes of the deceased when his or her will was precise and well-constructed. If it is unclear, the executor of the deceased’s estate can apply to the court to clarify its contents. The court’s main objective will be to ensure that the wishes of the maker are carried out accurately.

Who can challenge a will?

Legally, a person can distribute his or her assets and properties in any way he or she wants. This may include naming charities, family members and yes, even friends or strangers as beneficiaries of the estate. A family member or people who have a close relationship can face undue financial issue as a result of being left out of the will. This warrants a challenge. These people include:

  • A de-facto partner
  • A current or former spouse
  • A child or grandchild
  • A person or dependent who had a close personal relationship with the will’s creator at the time of death

Also, take note that an application must be received by a court within 6 months of the date granting of probate of the will and/or letters of administration.

It’s important to seek legal advice, whether from a local attorney or online when planning to challenge a will. An attorney will be able to walk you through the entire process. This way, you’ll ensure that you have a valid claim or not, saving you time, money, and energy.

What happens if I’m successful?

If you successfully contested a will, then it will be declared invalid. It will then be replaced as the testator’s last will by the next most recent will. If there is none, then the rules of intestacy will apply instead.

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