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Julie Height

- 1 Nov 2016
  • Wills & Estates

How to challenge a will

What are the first steps I need to take to dispute a Will?

The most common methods of disputing a Will are:

  1. Attacking the validity of the Will
  2. Claiming against the estate on the basis that a Will has left you without adequate provision.

 

Attacking validity

A Will may be invalid for a variety of reasons including but not limited to:

  1. The Testator (person making the Will) did not have legal capacity to make the Will and therefore it may not reflect their true intentions;
  2. The Testator may have been coerced or unduly influenced in making the Will by someone else;
  3. The Testator did not know or understand the contents of the Will;
  4. The Testator’s signature was forged or the Will was unsigned.

If a Will is deemed to be invalid then an earlier, valid Will will be considered (assuming there is one).  If there isn’t, the deceased is deemed to have died “intestate” and the estate will be administered accordingly.

 

Claiming for provision from estate

Every matter is different and should be carefully considered in determining the likely success of a claim.  However determining whether you are eligible to make a claim is relatively simple.

To make a claim, you will need to consider things like:

  1. Are you eligible? This includes spouse, domestic partner, child, grandchild, parent and sometimes, siblings and step-children.  If you do not fall in one of these categories, you cannot make a claim under the Act.
  1. You need to satisfy the Court that you have been left “without adequate provision for your future maintenance and advancement in life”.  This means you must show you have financial “need” like having dependents of a mortgage.

If you meet these criteria, your fees may be covered by the estate. This means that in most cases, there are no up-front fees payable.

Of course, the longer parties argue over the claim, the less they are arguing over.

A final word of warning of utmost importance is that any claim under the Act must be made within 6 months from the date of a Grant of Probate.

 

If you want to challenge a Will, strict time limits apply so it is worth speaking to a member of the highly experienced DBH Wills & Estates team on 1800 324 324 or via our contact page as quickly as possible, otherwise your right to claim may be lost.