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Contesting an unfair will

Challenging a will

The law provides that people who have unfairly been excluded from a will, or not adequately provided for may be able to apply to a court to change the distribution of an estate. Only “Eligible Persons” – spouses, children and dependents – are able to make such a claim which is known as “Contesting a Will”, or a Family Provision Claim. Segelov Taylor Lawyers are able to provide advice and representation in Family Provision Claims.
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Common Questions

A person making a will must have testamentary capacity. This means they must be of sound mind, memory and have understanding at the time of making the will. A person is regarded as having the required capacity if they:

  • Know what a will is;
  • Realise in general terms the amount and type of property they are disposing of;
  • Can weigh the “moral claims” that they should be considering when deciding who to leave property to; and
  • Know and approve of the contents of the Will.
Any person who has interest in the will (or a previous will) of the deceased may challenge a will. This is a far broader test than for contesting a will.
A will can also be challenged if the will maker was subjected to undue influence or duress in the making of the will. A court will however only overturn a will on the grounds of undue influence where it is satisfied the will maker’s mind was coerced to such an extent that the resulting will was contrary to the will maker’s real intentions. This can be extremely difficult to prove.
There are not strict time limits, although proceedings should be commenced as soon as practicable.
An alternative to challenging a will is to contest a will. The difference between challenging a will and contesting a will is that a challenge to a will alleges that the will is not valid, while a contest to a will alleges that the will improperly excludes (in whole or part) a person who should have been provided for. Segelov Taylor are able to assist in contesting and challenging wills.
Segelov Taylor acts on a ‘no win no fee’ basis for individuals in family provision claims. This means if you are not successful you will not be charged for our costs incurred in litigating the claim. However, if you are not successful in your claim you may be order to pay the executor’s costs. It is therefore important you seek legal advice as to the merits of any claim before commencing proceedings. If you are the executor of a Will where a family provision claim has been made you are entitled to have the cost of defending the claim paid by the estate.
Contesting a will and challenging a will have very different meanings. A will is contested when someone believes that they have not received adequate provisions or fair treatment from the deceased’s estate. This does not mean they believe the will was not valid. The process is often referred to as a family provisions claim. A will is challenged where there is a dispute as to the validity of the entire will itself. To challenge a will is to claim that the will is an unjust representation of the deceased’s interests or has been created in an illegitimate way. A challenge is an appeal for the entire will to be struck out. When this occurs, a prior valid will have effect, or there may be no valid will and the rules of intestacy will apply.
A family provision claim must be filed within 12 months of the date of death. The court has a discretion to extend the time for the commencement of a claim if there is good reason for the delay.
The fact that you received something under a will does not prevent you from bringing a claim contesting a will. Rather, the crucial issues are whether you (a) are an eligible person (generally a spouse, child, or dependent), and (b) whether you received adequate provision under the will, taking into account all the relevant considerations.
A claim is made by filing an application in Court along with a detailed Affidavit setting out the circumstances of the case. This must be done within 12 months of the date of death. The estate will respond and file its own evidence. The matter will then be listed for compulsory mediation. This is generally within 4-6 months of the claim being filed. Most matters settle at mediation. If a matter doesn’t settle at mediation, it will proceed to hearing. This will normally occurs within 12 and 18 months of the commencement of proceedings.

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