Contesting A Will - Four Frequently asked questions
The entire process of filing, fine-tuning, and executing a will is a detail-intensive experience that can stress out even the most knowledgeable person. From the moment the particulars are listed up to the selection of a trustworthy executor, it’s no secret that drafting up a will takes a great deal of skill, knowledge, and patience.
While putting an entire will together and enforcing it by law is stressful as it is, disputing a will that isn’t your own is an entirely different story. This is especially true because it entails taking many technicalities into consideration. Whether you want to dispute an unfair will or are simply preparing for the process of drafting your own, here are a few questions that are essential to know the answers to:
1. “What can I do if I’ve been unfairly left out of a will?
If you feel that you’ve been unfairly left out of a will of someone that’s passed away, keep in mind that the entire process of contesting the document itself can be quite complicated. Should you feel that you are entitled to make a claim against a deceased estate, it is first vital to consider what your prospects of success may be.
At this time, it is vital to make an application to the Court (commonly known as a Family Provision Application) if you have a justifiable reason as to why you should have been included in the first place. Throughout the course of a Family Provision Application, you’re essentially challenging the said will and asking the court to make an order which ensures that you’re properly provided for in the deceased’s estate.
2. “What do I do if I don’t think the executor of the will is fit for the title?”
One of the most common forms of will disputes can be seen in any situation that involves a concerned family member or friend contesting the document’s executor for whatever reason.
There are many reasons as to why anyone could possibly contest a will’s executor in the first place, such as a conflict of interest, the executor’s inability to properly carry out their duties, or any history that dictates a possibility of ulterior motives. In cases like these, matters can be settled by bringing an application to the court to remove an executor as only they have the power to remove a personal representative that’s bound by law.
It is worth noting, however, that the final say on the matter will be entirely up to the Court’s discretion based on any facts, appeals, and narratives that are presented.
3. “Am I allowed or eligible to contest a will?”
Generally speaking, there is a set of different circumstances that determine a person’s eligibility to contest a will. Here are a few situations where you would be most eligible or allowed to contest a will:
● If a proper provision was not made for you in the will
● If there was a clear error or mistake in the will that requires a court order to rectify it
● If a certain promise that was made to you which would be left in a certain part of the estate has not yet occurred
● If the will-maker themselves was subject to undue influence (such as threats or intoxication), or any other form of incapacity to make a will
4. “Can I contest a will even after probate has already been granted?”
In this case, it is still possible to give the executor or personal representative a notice of your intention to contest the will even if probate has already been granted by the Court. However, the usual time limits will still apply. To protect your rights, you must ensure that the executor of the will is put on notice within the time limits so that your rights are as protected as possible.
Contesting a will can often prove to be a fairly complicated matter because of the various factors that must be considered beforehand. By asking yourself the right questions and brushing up on their respective answers, you can be adequately prepared before you contest a will!
If you’re looking to learn more about contested wills in Sydney, get in touch with us today to see how we can help.
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