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Challenging a Will

Challenging A Will

Our Gold Coast estate lawyers are often asked “who should be the executor of my Will?”. The short answer is that the executor needs to be someone that you trust to put into effect your wishes.

These claims are most often:

Family provision claims

Also called Testator’s Family Maintenance Claims where a person applies for provision or more provision to be made for them from the estate of a deceased person.

Family provision claims are usually made by a spouse, child or dependant of a deceased person on the grounds that:

(a) Nothing was left to them in a will (or they did not receive anything out of an intestacy);

(b) Not enough was left to them in the context of the estate.

There are many cases where family provision claims are made by person who have fallen out of contact with the will maker or who have been deliberately left out of a Will because of a dispute with the testator.

Family provision claims are conducted in accordance with practice directions issued by the Supreme and District Courts in Queensland which are designed to encourage dispute resolution and the fair exchange of information. There are however very strict time limits in relation to testators family maintenance claims and as a result, it is important to take legal advice as early as possible if you wish to make one. To some extent the process involves challenging the will as not being reasonable for the person claiming, but the process is also available for people when the deceased has passed on without having left a will.

Undue influence claims

Where a will has left a substantial part of the estate to a particular person or interest, and there is not a reasonable basis for that, challenging the will can be made on the basis that the making of the will was unfairly influenced by that other person or interest.

Undue influence disputes are not uncommon, usually involving carers or one sibling against another or one sibling against others. When challenging a will on the basis of undue influence, the interference of the person alleged to be exerting undue influence in the will making process can be very relevant in assessing whether there has been undue influence. For that reason, our Gold Coast wills lawyers and Gold Coast estates lawyers will generally not take instructions from will makers in the presence of persons who might directly or indirectly benefit from the will.

That there has been a later Will

Successful proceedings for challenging a will can be made where there is a later will. For that reason our Gold Coast wills lawyers will generally recommend that enquiries are made to verify that the will at hand is the last will of the deceased.

This is particularly the case in more recent times as there is the ability for the court to dispense with formal requirements in proving a will (eg the requirement for two witnesses) provided that it can be proved that the deceased intended the informal will (such as texts, a video, or other record) to be their last will). Those applications to prove an informal will can be challenging and expensive, but can radically change the disposition of the estate.

Where the Will maker did not have sufficient capacity to make a Will at the time that it was made.
Challenging a will on the basis that the will maker did not have the necessary mental capacity is also open to disappointed potential beneficiaries. With an aging population, allegations of a lack of testamentary capacity are becoming more common. What has to be shown however if that the deceased person did not have necessary capacity to understand the effect of the document that was being prepared. Having a Will prepared by an experienced lawyer who follows the checklists recommended for Will making and Will execution will help avoid these claims arising, and many lawyers will, if there is reason for concern, recommend a contemporaneous medical assessment to establish capacity.

In the event that there is a finding that there was no capacity to make a Will, it will usually be the result that the Will has no effect at all and that the Will which was in effect on the last occasion that capacity is established will take precedence.

The estate lawyers at QBM Lawyers are familiar with these claims and actions for challenging a will and have the resources to advance or deal with them. The strength of our lawyers in litigation ensures that any estate dispute is dealt with quickly and cost effectively, with the provision of realistic advice.

Our estate lawyers and our litigation lawyers can assist in all estate disputes. If you would like to discuss a matter, please contact Peter Muller on 07 5574 0575 or peterm@qbmlaw.com.au.

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