How a Will Is Contested in Court

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Although a person can leave their estate to whomever he or she wishes, their will can be challenged in court. If relatives of the deceased feel they were treated unfairly by being left out of the will or that they didn’t receive enough of the estate, they can hire an attorney to help contest the will. There are several ways in which an attorney can help you contest the contents of a will.

Is the Will Valid?

One of the first things that will be done in preparation for contesting a will is to check the validity of the one being presented on behalf of the deceased. Either the person contesting the will can question whether it is valid, or an application has to be made under chapter 3 of the Succession Act 2006, which is the Family Provision chapter.

To prove that a will is valid, the court must show that:

  • It was the last will written.
  • It satisfies or was executed according to the requirements of the Succession Act 2006.
  • The person who made the will was of sound mind when it was drawn.
  • There was no ‘undue influence’ being made when the will was drawn.
  • The will was not altered after it was signed.

If the will is ruled to be valid, you can have an attorney from the firm Maurice Blackburn contest a will in court.

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What the Court Considers

When a will is challenged, it is by someone close to the deceased who claims they were not fairly treated by what was left to them in the will, if anything. There are 16 considerations in the Succession Act 2006 that the court can use to determine if the will treated the contesting party unfairly. Among these considerations are:

  • How the contesting party conducted themselves before and after the death of the deceased
  • The character of the contesting party
  • If the contesting party made any contribution to the deceased’s welfare or their property
  • The court may make other considerations it deems important

The person contesting the will must be considered an eligible party to the will. If so, the court looks to see if that person’s education, maintenance, and future were provided for in the will.  The court considers an ‘eligible’ person to be:

  • The spouse at the time of death
  • Someone with whom the deceased had a de facto relationship with at the time of death
  • The deceased’s child
  • A former spouse
  • A person who was dependent on and living with the deceased
  • The deceased’s dependent grandchild
  • A person who was living with and had a close relationship with the deceased at their time of death

Any of these eligible people can apply to contest the deceased’s will under the Succession Act, but the application must be made within 12 months of the death of the deceased. It is not an easy process, but if you feel you are eligible to receive more from the deceased’s estate, then you should consult an attorney about contesting their will.