A will is a legal document that outlines the final wishes of a deceased person. Wills are essential components of estate planning because they provide a legal mandate for distributing a dead person’s property to their beneficiaries.
In addition, certain bequests will be made to specific beneficiaries, while the remainder of the estate will be divided by your wishes.
However, if you are dissatisfied with your share of the estate or believe you were wrongfully excluded from it, you may be able to contest the will. Contrary to popular belief, contesting a will entails challenging the will’s terms in probate court, usually with the assistance of a probate attorney.
The following are the legal reasons for contesting a will:
1. Fraud
A will may be contested because the deceased person was unduly influenced or tricked into changing it.
For example, if the deceased experienced a fall or had an accident, and while they were incapacitated, they were manipulated into signing a new will or revising an old one.
Furthermore, you can do this virtually in probate court. The burden of proof will be on you to show that the deceased person was not of sound mind and could not make the will when it was made.
2. No Will or Will Does Not Match with State Law
Some states have laws that protect the interests of the surviving spouse or children. A will may be contested if it ignores these laws.
For Example, If someone dies intestate in Queensland – meaning without a Will – who do their assets pass to? Contrary to popular folklore it’s not the government. At least not initially. In Queensland the ‘next of kin’ of a deceased person are fourth in line to receive the assets, behind the deceased’s spouse, children and parents.
3. Undue Influence
Beneficiaries may contest a will if they believe someone had undue influence over their testator’s decision to change their will.
For example, if the testator’s health was declining and one of the beneficiaries was a nurse taking care of them, it may be grounds for contesting the will.
Moreover, the burden of proof will be on the beneficiary to show that the will was improperly or unduly influenced.
4. Lack of Capacity
A will may be contested if the deceased cannot make it. This usually applies to people who have lost the capacity to reason or make decisions.
For example, if the testator was suffering from a disease that impaired their mental capacity, it may be grounds for contesting a will.
This is usually done through a formal proceeding in probate court. The burden of proof will be on the contestant to demonstrate that the deceased could not make a will.
5. Reliance on an Incorrect Representation
A will may be contested if the person contesting the will can show that the deceased person relied on a false representation when making their will.
For example, if the deceased person was told that their spouse had died in a car accident when, in fact, they had divorced them. Or the deceased was told that they only had a year to live when they had 10 years to live. In this case, they may be able to contest the will.
The burden of proof will be on the person contesting the will to show that a representation was false and that the deceased person relied on it when making their will.
Conclusion
Contesting a will is a complicated matter that can entail several different legal arguments. If you believe you have grounds to challenge a choice, it’s best to consult with a probate attorney who can help you determine the best course of action.
Are you looking for Wills and Estate Lawyers in Redland Bay? Bickell & Mackenzie is the best place for you. Our services focus on Conveyancing, Wills and Estates Administration, and Family Law. Contact us today!
