Who can contest my Will?

Published 26 Feb 2019

A Will is your chance to ensure that your assets and precious belongings go to the right people. Considering what will happen after you pass isn't a pleasant task, but it can give you peace of mind knowing that, should something occur, you're providing for the people you care about. 

However, it's important to note that your Will can be contested and this isn't necessarily a negative thing as you may think. If your Will wasn't updated to reflect important changes, contesting what's written may allow individuals to more closely follow your wishes. 

Who is able to contest your Will and what is the process that's followed?

Is it only my spouse and children who can contest my Will?

The range of people who can contest your Will is much greater than simply your spouse and children. In accordance with the Succession Act 2006, the following people are likely entitled to claim a greater share of your estate:

  • Spouse.
  • Children. 
  • De facto partner. 
  • Parents. 
  • Stepchildren. 
  • Grandchildren. 
  • Former spouses and de facto partners.
  • Other dependents.
  • Individuals who were living in a close personal relationship with you at the time. 

There are many reasons that someone might challenge your Will. Some of the most common drivers for contesting your Will are:

  • Its validity.
  • Undue influence in its making.
  • Interpretation.
  • Ensuring proper provisions are made for your family and dependents. 

What happens if someone contests my Will?

If someone needs to contest your Will, their first port of call should be a lawyer. They will advise on whether there's a case to proceed with, and guide the individual through the next steps.

There is a time limit on how long individuals can raise claims against a Will. While there are certain scenarios in which this deadline is waived, in the majority of cases it's strictly applied. Currently, the law states that your Will can only be contested in the 12 months after your passing. 

Disputes over Wills are generally resolved through a settlement agreement or in mediation. However, occasionally the case proceeds to Court. 

The Court will take into account a variety of different matters when making its decision over the contesting of your will. These are laid out in Section 60(2) of the Succession Act 2006 and include:

  • The overall character and conduct of the claimant, as well as their whole situation. 
  • Any contributions the claimant made towards your estate or wellbeing. 

To help avoid your Will being contested, its important to ensure it's created correctly and regularly updated. Openly discussing with your loved ones what you're putting in your Will and why can assist in avoiding disputes as well. 

If you're looking to create a Will, ensure that you get the best legal advice. Contact the team at Malouf Solicitors today. 

Please call us on 02 8833 2000 to speak with a lawyer

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