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What you need to know about contesting or challenging a Will

The loss of a loved one is a difficult time, and finding out their Will might not reflect their true wishes can be even more challenging. If you believe a Will is unfair, invalid, or doesn't represent the deceased's intentions, contesting a Will is a valid option. This guide will explore the common grounds for contesting a Will, such as:

  • The incorrect execution or administration of a Will;
  • the lack of capacity or undue influence of the Will Maker; and
  • the lack of provision for dependents.

The difference between contesting and challenging a Will

Contesting and challenging a Will are often used interchangeably when discussing disputes. However, legally, there’s a significant difference.

Challenging a Will focuses on questioning its legitimacy. Contesting a Will assumes the document is valid but argues that it doesn't reflect the deceased's intentions.

Both challenging and contesting a Will can lead to estate disputes, which are legal proceedings to resolve disagreements about the Will or the handling of the estate.

On what grounds can you contest a Will?

There are several situations where you might consider contesting a Will. It's important to note that contesting a Will can be a complex and expensive process with strict time limits. Make sure to seek out legal advice from a professional to determine if contesting a Will is the right course of action for you.

You may be able to contest or challenge a Will in the following scenarios:

Incorrect execution or administration

A Will must meet specific legal requirements for format and signing. It must also be administered appropriately after the deceased's passing, following the Will's instructions and applicable laws.

For example, The Will might not have the required number of witnesses, or a witness might be named as a beneficiary, which could invalidate the Will. Alternatively, the executor named in the Will might be mishandling assets or not following the Will's instructions for distribution.

Lack of capacity of the Will Maker

The person who creates the Will (the Testator) must have the mental capacity to understand the nature of their decisions when the Will is created.

For example, if the Testator was suffering from a severe illness at the time the Will was signed and couldn't understand the document or its implications, this could be grounds for contesting the Will.

Undue influence

This occurs if someone pressures or coerces the Testator into creating a Will that benefits them and doesn't reflect the Testator's true wishes.

For example, a caregiver might pressure someone who relies on them for daily needs to leave them a significant portion of the estate, even though the deceased intended to leave most of their assets to their children.

Lack of provision for dependents

In some cases, spouses, children, or other financially dependent individuals may have a legal right to inherit from the deceased's estate, even if they weren't mentioned in the Will or received a minimal amount. This depends on the specific laws and the nature of the dependency.

For example, a divorced spouse who was financially dependent on the deceased, with a young child from their marriage, might contest the Will if they were excluded entirely, while the deceased left their entire estate to a new partner.

Are you concerned about how a Will has been handled? If something doesn’t sit right with you, our Estate Dispute Lawyers can review all details of the Will to see if anything can be deemed unlawful or unjust.

Please note: The information covered in this guide is general and should never be substituted for professional legal advice. Contact us for further information.