Can I Dispute a Will?
The death of a loved one is an incredibly traumatic occasion for the whole family. However, this occasion can become even more traumatic if the estate is disputed. In this post, we will discuss some of the common reasons why wills are disputed and how these disputes can be resolved.
Common Reasons Estates are Disputed
There are a number of reasons why estates can be disputed; especially in large families at a time when emotions are running high. Common reasons for estate conflict include:
- No will was ever created
- The will created by the deceased is invalid
- A member of the family is disputing what the will says
If you believe that a will is invalid or the information it contains is incorrect, then you should seek specialist legal advice immediately. Not only will your lawyer be able to advise you on ways to resolve the dispute, but they will also be able to advise you on your likelihood of success.
When Can I Contest a Will?
If you would like to dispute a will, then you need to inform the executor of your intention to bring a claim in writing within six months of the death. This is because, after six months, they are free to distribute the estate.
In Queensland, you have nine months from the date of the death to file an application in court. If the estate has not yet been distributed and there is good reason for the delay in starting proceedings, the court does have the discretion to extend this period.
What Does the Court Consider when a Will is Disputed?
Each matter that comes before the court is different. As a direct result of this, before you dispute a will, you should speak to your lawyer first. However, generally speaking, if you dispute a will in the court, they will consider:
- The length and nature of your relationship with the deceased
- Contributions you made to their estate and support you provided the deceased
- Promises the deceased made to you
- The deceased’s contribution to your current lifestyle
- Your current financial circumstances
- Your ability to maintain yourself
- The validity of any competing claims
Although these are many of the factors that courts take into consideration, there may also be other factors that they deem to be relevant and each matter is unique.
Making Family Provision Applications
If you can show that the will of the deceased has left you without the ability to support yourself, then you can make a Family Provision Application. However, you can only apply if you are:
- The spouse, de facto partner, or registered partner of the deceased
- The former spouse or registered partner of the deceased
- Their child, adopted child or step-child
- A dependant who was wholly or substantially maintained by the deceased at the time of their death
Do I Need to Go to Court?
The good news is that many disputes surrounding wills are resolved before they reach the courts. Your lawyer will help you negotiate a settlement and can provide you with advice on how to proceed at each stage.
As a result, before launching legal proceedings, you should instead try mediation first in order to settle the dispute with other beneficiaries.
If you are considering challenging a will, are currently disputing a will’s legality or would like to dispute what a will says, then please contact our office on (07) 3343 9522.