Long before you can start the process of fighting a will, you must first determine whether you are even one of the people who is qualified to do so. If you are an eligible person, you can contest a valid will if you feel you have received inadequate provision. If the Court decides to find in your favour, it can either alter the provisions or order the redistribution of the estate altogether. When you need to contest a will, you may wish to only alter one small part of the will or to change the entire thing. Whatever the need or reason, you must first be eligible for contesting it in the first place.
Eligible people include spouses at the time of death and former spouses, as well as de facto partners. If you are one of these three types of people, you qualify to contest the deceased’s will and can contact a lawyer for help. Other people who are considered eligible are children of the deceased, including step-children, and grandchildren of the deceased who were wholly or partly dependent upon the deceased at any time and were at any time part of the deceased’s household. Excepting QLD, you may also contest the will if you were wholly or partly dependent upon the deceased and were part of his or her household even if you were not a child or grandchild.
Depending on your state of origin, you have a specific amount of time in which you can begin contesting a will. In NSW, you have 12 months from the date of death to file a contest. In VIC, the time period is dramatically shorter at only 6 months from the date of a grant of probate. If you reside in QLD, you have 9 months from the date of death but you must make notification of your contest within 6 months of death. If you miss these limits, you legally waive your right to contest a will and it shall be carried out in accordance to its original terms. In rare cases, not knowing the person has died or not knowing about the time limit may grant you an extension.
Reasons to Contest
The courts consider specific situations valid reasons to contest a will, such as any provision not being adequate for your proper maintenance, education, and advancement in life. You may also contest the will if the situation is grossly unfair to you, such as all or most of the deceased’s assets going to someone who is not wholly in need of them. The financial needs of family members are also considered as well as the situation of any dependants who were partially or wholly financially dependent upon the deceased. If you feel that the deceased did not have the mental capacity to understand what it was that he or she was doing when creating his or her will, you may also contest it. Alternatively, there may be proof that the deceased made his or her will under duress or another person’s direct influence. Whatever reason brings you to contest a will, the right professionals will help you throughout the entire process to make it finish faster, more simply and in your favour.