With wills already being a complex field of law, introducing the idea of will disputes may serve to complicate these legal matters further. In doing this, uninformed families suffer confusion and potentially don’t realise their rights during mediation. For this reason, Goodman Group Lawyers seek to demonstrate how and why someone would seek to dispute a will in this blog.
What is a contested will?
Challenging a will (also referred to as contesting a will) involves the challenging of a will written by a deceased party. There are many reasons why the validity of a will might be challenged, the legitimacy of these entirely depending on specific circumstances related to the deceased.
A will dispute might occur if:
- The deceased has failed to properly provide to a family member (either not providing for them at all, or the provision was unsatisfactory)
- The deceased did not have the capacity to effectively write a will at the time when it was signed
- The will was written under the influence or duress of others
- Parties wish to remove executors or trustees
- Particular beneficiaries of the will are absent
- Disputes related to administration of the estate
- Clarifying the meaning of phrasing in the will
- An extended delay in proving the will’s validity.
Personal circumstances related to each of these disputes make will challenges even more complex, sometimes making it necessary for the dispute to go to court.
The process related to estate disputes
A party wanting to dispute a will usually apply to the court. Even in applying to have the dispute occur in court, the court will usually require all the parties to attend a mediation first to try and come to an agreement themselves.
An individual wanting to dispute the assets they believe they were entitled to must prove that the writer of the will had a “moral duty” to provide for them financially – this process is called “testator’s family maintenance”. In instances like this, the party wanting to dispute would be closely related to the deceased, such as a spouse, parent or child.
Other individuals, such as registered carers, grandchildren or members of the household may also apply to dispute a will if they are able to effectively demonstrate that they were either partly or fully dependent on the deceased.
What is considered by the court during will disputes?
When the court is deciding if the disputing party is making a valid claim, they will approach the will from multiple angles. In order to provide a thorough decision, they will examine:
- The relationship between the disputing party and the deceased
- Why the will-maker wrote the will in the way they did
- Whether the person was dependent (fully or partly) on the person who died
- Examining whether the deceased party had a ‘moral duty’ to provide for the disputing party
- Disabilities (whether physical, mental or intellectual) of the disputing party and other beneficiaries
- How the other beneficiaries named in the will might be affected by any changes made to the will
If a family member or individual close to the deceased wishes to apply for a testator’s family maintenance claim, they must do so within six months of the grant of probate or letters of administration being made.
Looking to challenge or manage a will dispute?
Navigating laws concerned with will disputes can be time consuming and confusing due to the complexity of this field. Goodman Group Lawyers have significant experience in providing our clients with informed and reliable advice, ensuring that any we’ll be able to manage any will dispute or challenged will with exceptional understanding.