When it comes to creating a will, Australia allows people the right to prepare a last testament. The contents of the will should be respected, as they are the last written desires of the deceased. Keeping this in mind, there are circumstances where contesting a will is a matter of the survivors being aware of their options in order to ensure eligible people are provided for. Let’s take a look at some of the ins and outs of inheritance disputes and how to stop a potential will contention.
Why someone would want to contest a will
To begin, you may be confused about why someone would want to contest a will. There are several reasons why an individual may want to challenge the last testament of the deceased. If you can understand why the person who is contesting a will is doing so, you and your legal team can work towards preventing the action. The end goal would be to protect your own rights and get what was legally left to you in the will. Here are some of the most common ways that someone could contest a will and why they would want to follow through with the contesting.
Mental capacity
The eligible person who is trying to contest the will may claim that the owner of the will was lacking the mental capacity to create a legal will. In order to stop this form of contesting a will, you will need to prove that the person who created the will completely understands their assets and the legal effect of signing the will. In addition, there will need to be evidence that the creator of the will understands their own family relationships with a family member or domestic partner.
When planning your will, have your estate plan drawn up with the help of an experienced lawyer with an adequate provision for every beneficiary. The best course of action is to have both your lawyer and your medical provider present when you sign your will. This way these legal professionals can testify that you were of sound mind.
Incomplete will
Claiming that the will is incomplete or faulty is another common way that people may try to contest a will. The best way to prevent this from happening is to create an airtight will from the very beginning. This way there will be legal evidence that the will is complete and created correctly. Because each state in Australia has its own version of making a will legally binding, a legal team on your side to complete the will accurately is a valuable tool.
Influenced to make the will
It is possible that the person who is trying to contest the will may try to assert that the creator of the will was influenced by outside sources to make certain decisions. Undue influence is an extreme manipulation and can be difficult to prove, but a legal team can help protect you from someone claiming it. Again, having a witness to the will can help protect your own will from becoming contested in this way after you die.
These are just a few examples of what someone may use to contest the will. If you can understand which angle they are taking, your legal team can prove that you are rightfully inheriting assets from the will. Keep in mind that there is a moral duty of the deceased to take into consideration, something that will contesters often forget. Recently the Supreme Court and Court of Appeal have made decisions that have changed the landscape of wills and will dispute claims on this front.
How to stop someone from contesting a will successfully
We have already briefly mentioned a few different ways to stop someone from contesting wills. However, the process is actually reliant on having a legal team who understands the complicated world of inheritance law. This is a front that is frequently changing and can be somewhat complicated to understand. Gerard Malouf & Partners understands that when you are dealing with someone contesting a will, it can be a painful time between close family relationships. That is why we will take care of the legal issues while you heal from the loss and the shock that can come with such a conflict.
The best way to prevent someone from contesting a will is to create a will that is airtight and legal from the very beginning. This means that you should not try to do it yourself and create your own will without any legal personal representative. It only takes a small mistake for the wishes represented in the will to be misconstrued. Without a knowledgeable legal professional on your side, the will is vulnerable to attacks from disgruntled family members or an unhappy business partner. An experienced estate planning lawyer will be able to help you or your loved one create a will that will be safer from lawsuits down the line when it matters the most.
Similarly, when creating a will, be sure to discuss your personal wishes with your family and your lawyer. Someone may be more likely to contest a will when they are surprised by the contents of that will. If they were expecting to receive an estate asset that was never supposed to go to them, they could become overwhelmed with the feeling that the will is unfair. If everyone involved is on the same page, there is a smaller chance that the will could be contested in the future.
Another important thing to keep in mind is that your will should be kept up to date. It is harder to contest a will that is accurately revised when lifestyles and asset acquisition circumstances change. On the other hand, an old will may not reflect the current situation and therefore be easier to contest. Work with your lawyer to keep your will current.
Another way to protect your will against a challenge if you live in New South Wales is to pay attention to the moral obligations under the Succession Act during estate planning. This is a piece of legislation that makes it so that the transfer of property from one generation to the next is a rite of passage and the making of a will is considered a ‘social norm’. You can also take the step of distributing your estate before you pass away so you can be sure your wishes are followed.
Dispute timelines
If you are unable to prevent someone from contesting a will and the issue proceeds, you may be wondering how long it will take to be resolved. Dispute timelines can vary depending on the case and where the proceedings are taking place. Each state has its own unique laws, and your legal counsel will be able to guide you through the process accordingly. The truth is that a lot rides on the Australian state or territory the willmaker lived in.
The person who is contesting the will must adhere to statutory deadlines, which vary depending on the location of the deceased person’s estate. Some areas base the deadlines on when the testator died, while others rely on when the probate was granted. It is important to know that there is a deadline, regardless of how it alters based on location, that must be followed or the will cannot be contested.
If you are trying to stop someone from contesting a will, it is important to know when the deadline for contesting a will is. Let’s break down how these timelines change depending on location:
- ACT: Six months from the date of probate to lodge a claim and contest a will.
- New South Wales: A year from the date of the testator’s death to file a claim.
- Northern Territory: A year to file a claim from the probate grant.
- Queensland: Notify executor six months from the date of testator’s death.
- South Australia: Six months to file a claim from the probate grant.
- Tasmania: Three months from the date of probate to make a claim.
- Victoria: Six months from the date of probate grant.
- Western Australia: Make a Family Provision Claim six months after the date of the grant of probate.
Obviously, it would be best to prevent the will from being contested in the first place, but if you know that it may be coming, having a good understanding of when they can no longer file is helpful.
Ask for legal advice
One of your best tools for preventing someone from contesting a will is to have a knowledgeable legal team on your side. Even from the very beginning, asking for legal advice during the creation of the will in the estate planning process is essential. A small mistake can be costly down the road and having a lawyer can prevent any future issues. At Gerard Malouf & Partners, we have the experience and knowledge that will be extremely valuable with prevention in the beginning.
If you think that someone might be contesting the will, having a legal team who is in the know to provide professional advice is a good idea. They may be able to help protect the inheritance and ensure that the deceased’s will is being carried out. A family court will take several elements into account when considering a family provision claim. Some of these factors include the size of the estate, the number of beneficiaries, their individual needs and claims, and the eligibility to claim provision from the deceased’s estate.
Our free Guide To Inheritance Disputes helps you navigate these challenges and understand the requirements that someone might use to make a will dispute claim. GMP Contesting A Will Lawyers are one of the best partners to have to walk you through dispute resolution. Because we understand what it takes to contest a will, we can help prevent that from happening to you and your loved ones. From the very beginning, we can help you create a will that has a low chance of being contested in the future. We can also ensure that your will remains up to date and follows all the necessary guidelines in Australia.
To learn more about how to stop someone from contesting a will in your state, reach out to the professionals at Gerard Malouf & Partners today.
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