DISPUTED WILLS

There are benefits to having a Will. It provides peace of mind. Often Wills are straightforward due to the nature of one’s family circumstances. However, you are able to decide exactly who should benefit from your estate and to what extent. If you do not have a Will then appropriate legislation will be applied and your estate will be distributed accordingly.

Although the law recognises a person’s right to choose who will receive his or her property and possessions, there are often sound reasons why a person may choose to contest a Will.

If you are considering contesting a Will, there are several types of claims you need to know about.

Testator's Family Maintenance Claim

The vast majority of challenges to a deceased’s Will are made under what is known as a testator’s family maintenance claim. In these cases, the Will itself is often valid, but a person who believes they had a dependent relationship with the deceased before their death may state that they were not provided for adequately and seek a greater share of the deceased’s estate.

These claims appeal to legislation introduced in 1958 which stipulates that a person making a Will must make provision for the proper maintenance and support of a person for whom he or she has a moral responsibility. This legislation has been updated and expanded across different states and territories in recent years to refine its scope.

Factors that will be weighed up by the Court in examining a testator’s family maintenance claim include:

  • Whether the deceased had a moral duty to provide for the claimant
  • Whether the estate has already made adequate provision for the claimant
  • Whether the claimant is capable of providing for himself or herself
  • What effect the claim, if successful, will have on other beneficiaries under the Will.

Common scenarios where a testator’s family maintenance claim may pass include situations where the deceased has made no provision or lesser provision for a step-child or where the deceased has made no provision for their de facto partner (including both heterosexual or same-sex relationships).

Lack of testamentary capacity claim

The beneficiary of an earlier Will can challenge a more recent Will if they believe the deceased did not have the testamentary capacity to understand what he or she was signing. Testamentary capacity is defined as a lack of ability to understand the moral obligations of making a Will, including how estate decisions will impact on family members and other dependents.

If someone chooses to contest a will due to a lack of testamentary capacity, they must be able to prove that the deceased lacked the knowledge or understanding required to make a legally binding and valid Will.

These claims appeal to legislation introduced in 1958 which stipulates that a person making a Will must make provision for the proper maintenance and support of a person for whom he or she has a moral responsibility. This legislation has been updated and expanded across different states and territories in recent years to refine its scope.

Factors that will be weighed up by the Court in examining a testator’s family maintenance claim include:

  • Whether the deceased had a moral duty to provide for the claimant
  • Whether the estate has already made adequate provision for the claimant
  • Whether the claimant is capable of providing for himself or herself
  • What effect the claim, if successful, will have on other beneficiaries under the Will.

Common scenarios where a testator’s family maintenance claim may pass include situations where the deceased has made no provision or lesser provision for a step-child or where the deceased has made no provision for their de facto partner (including both heterosexual or same-sex relationships).

Undue influence claim

The beneficiary of an earlier Will can also challenge a more recent Will if they believe the deceased person was ‘unduly influenced’ by one or more people to sign a Will that did not reflect their true wishes. Contesting a Will based on undue influence is notoriously difficult as the presence of external pressures on a deceased person’s decision-making process is very hard to prove.

When evaluating undue influence claims, the Court requires the person challenging the Will to provide proof that the person making the Will was influenced to the extent that their free will was completely oppressed.

Breach of trust claim

The beneficiary under a Will or trust can ask the Court to remove an executor or trustee who they believe has failed or is failing to administer a Will or trust properly. They can also seek compensation if they suffer financial losses as a result of the executor or trustee’s wrongdoing.

Common examples of breach of trust claims include where an executor or trustee has wrongly paid out estate money to a beneficiary, failed to distribute trust assets to a beneficiary who is entitled to them under the terms of the trust document, kept some estate money for himself or herself, and failed to keep proper accounts or records.

We can help you contest a Will

A Will contains a person’s final wishes and sets out exactly what they want to happen to their assets in the event of their death. If you feel the terms in someone’s Will do not treat you fairly, there are legal courses of action you can take.

Contesting a Will can be complicated, but our team of expert estate litigation lawyers can guide you through every step of the process and fight for what’s rightfully yours.

We have helped clients contest Wills for many years, and our knowledge and experience in this area ensures the process is as quick and stress-free as possible for you.

Contact Bickell and Mackenzie

Speak with our friendly team to find out how we can assist, our locally based team are ready to help.

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Bickell & Mackenzie provides legal solutions to clients within Brisbane Bayside, Redland Bay and surrounding areas.

We pride ourselves on delivering a high level of confidentiality, professionalism, and expertise across multiple jurisdictions.

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