Connect with us

Your Time Magazine

If you’re feeling left out, a will can be challenged

Wealth

If you’re feeling left out, a will can be challenged

Will disputes are an increasingly common situation being dealt with by the courts. DON MACPHERSON explains that there are many grounds to mount a challenge, but time is crucial.

Wills can be challenged on many grounds, such as mental incapacity when the will is made, or undue influence or duress imposed on the will maker.

People are living longer, and many have complex family dynamics over their lifetime, such as blended families, and this can provide fertile ground for disagreement about how people are, or are not, provided for in a will.

Many people want to challenge a will on the basis that they have been treated unfairly in a will or left out of a will completely.

There are a number of possible grounds for disputes over wills, but among the more obvious potential claimants are the spouse or child of a deceased person who feel that they have not been adequately, or appropriately, provided for in a will.

Sometimes they have been left out of a will completely. Sometimes they have been treated unfairly, in their view.

A spouse, child or dependant can make a claim under the Succession Act alleging that appropriate provision has not been made for them in a will.

These challenges to wills are called Family Provision claims and are occurring more and more often.

A claim that the will doesn’t provide appropriately for a person must be commenced within nine months of the will maker’s death. Extensions of time can be given, but only in limited circumstances, and can’t be guaranteed.  The only safe way is to make the claim within the time limit, and to not rely on any extension being possible.

In assessing the merits of a Family Provision claim, the court is focused on what is proper and adequate provision for the claimant based on many factors.

These include their relationship with the deceased, the size of the estate, the rights and entitlements of other claimants, and their own individual needs and financial circumstances.

There are many grounds that may exist for challenging a will, and each case depends on its specific facts. The law is complex, and you should get specific advice about your personal circumstances.

 Don Macpherson is an expert in wills, disputes and estate claims at Sunshine Coast & Brisbane Elder Law. Call 1800 961 622 or visit sunshinecoastelderlaw.com.au or brisbaneelderlaw.com.au

More in Wealth

To Top