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Contested Probate Solicitors - Disputed Will Lawyers - Legal Advice

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Most people in Australia possess assets at the time of their death and want their property to be distributed according to their wishes. A valid will gives legally enforceable instructions about the distribution of assets and who should be in charge of the process. In some cases there may be dispute about the validity of the document and contested probate solicitors may become involved in a legal challenge.

Despite what is written in a will, it may be possible to challenge the distribution set-out in the will, or even challenge the validity of the will itself. If you have been left out of a will or you believe that your share of inheritance is unfair, your contested probate solicitor may be able to legally contest the will under certain circumstances.

Our Australian disouted will lawyers specialise in contesting wills and probate, family provision, and estate litigation. If you would like to challenge or contest a will, you should seek legal advice from a specialist lawyer in your State or Territory. Our disputed probate solicitors operate throughout Australia. Call our free helpline or complete the online contact form to receive obligation-free initial legal advice at no cost. No Win No Fee legal representation is also available.

Valid Will

In order to ensure that assets are distributed according to the wishes of the deceased it is important that a legally valid will is in force at the time of death however even then a challenge can still be mounted in certain circumstances by disputed will solicitors in a contested probate claim before the Australian Supreme Court. If there is no will the 'intestacy rules' dictate the allocation of the deceased's assets to relatives or if there are no qualifying relatives to the State.

Challenging A Will

There are a number of grounds for challenging validity and disputed will solicitors will initially consider matters outlined below if they intend to contest probate :-

  • The person who made the will, who is known as the testator, must have full mental capacity and have been able to understand what they were doing and the consequences of their actions.
  • The testator must not have been subject to undue influence, duress or pressure whilst making, preparing or executing the will.
  • The will must not be a forgery and must have been made by the deceased with their consent.
  • The document must have been executed in accordance with the law and have been properly signed and witnessed.
  • The will must properly provide for dependants.
  • Any later will which is subsequently found.

Despite what is written in a will, it may be possible to challenge the distribution set-out in the will, or even challenge the validity of the will itself. If you have been left out of a will or you believe that your share of inheritance is unfair, you may be able to legally contest the will under certain circumstances.

Grounds for Contesting a Will

A will may be contested if:

  1. The will maker has failed to make adequate provision for a person to whom they owed a responsibility.
  2. The will failed to comply with the necessary legal formalities required for the preparation of a valid will.
  3. The will itself is invalid. Grounds for invalidity include: the person lacked the necessary testamentary capacity; the will was made as a result of undue influence or duress exerted over the will maker by another; fraud.

Lack of Provision

There is a basic principle at law that a will maker (testator) has the right to leave their estate to whomever they like, subject to legislative provisions in each State and Territory which enable the courts to interfere with this freedom in certain circumstances.

A court can order that further provision be made from the estate where the distribution contained in the will fails to make adequate provision for the proper maintenance and support of certain people. These people include spouses, children, and in some jurisdictions this responsibility can extend to unrelated people who were in a close domestic relationship with the testator.

When considering whether to grant a greater share of the inheritance to an aggrieved party, the court will consider:

  • The length of the relationship with the aggrieved person.
  • The size and nature of the estate.
  • The age of the aggrieved person.
  • The financial resources and needs of the aggrieved person, and the needs of the other beneficiaries of the estate.
  • Any contributions made by the person to the building up of the estate.
  • The physical, mental or intellectual disability of the person or any other beneficiary.
  • The relationship between the testator and the aggrieved person. If the person was dependant on the will maker, then it is more likely that the court will find that the will maker had a responsibility or obligation to provide for them.

If you were estranged from the family member/testator and the testator purposely excluded you from the will, you may still be able to challenge the will.

Invalidity of a will

A will's validity can be challenged on the grounds of :

    Undue Influence - Mere persuasion or suggestions as to how an estate should be distributed is not considered to be 'undue influence'. The influence must be 'undue' in the sense that another person interfered with the testator's freedom to make their will, in that the testator was coerced into making a will that did not represent their true intentions.

    Fraud - A will that is the result of fraud is invalid. For example, a will is prepared by a third party and the will maker's signature is forged on the document. Another example is a will maker who signs a will wrongly believing it to be some other document.

    Testamentary Incapacity - To have the capacity to make a will means that the testator understands the nature of the will and its effect; the extent of the property to which the will relates; and the people to whom the will maker has an obligation to make provision. Mental illness, dementia and drug use can interfere with testamentary capacity.

    Formalities - A will may be declared invalid if it does not comply with certain legal requirements regarding the age of the will maker, signatures and witnessing.

If you have doubts about the validity of the will, you need to raise these doubts before probate of the will has been granted. Once the will has been proved and probate granted, the validity of the document is assumed. Therefore to challenge a will's validity you need to see a solicitor before probate is granted, and a solicitor can take steps to lodge a caveat on the will. A caveat will prevent the grant of probate being made until such time as the circumstances surrounding the preparation of the will have been determined.

Time Limits

A challenge to a will must be brought within a specified time period. Each State and Territory in Australia has a different time limit, and it is best to seek advice from a solicitor as soon as possible after the death of the testator.

If an application to challenge a will is not made within the specified time limit, an application can be made to the court for an extension of the time within which to make the claim. However a number of issues need to be proved before an extension of time will be granted (eg there must be a very good reason for the delay), and part of the estate must remain undistributed. It is very difficult to be granted an extension of time, so the best thing to do is to not delay in seeking legal advice- soon after a testator has died and you have concerns about your share of inheritance, speak to a solicitor straight away.

Contested Probate Solicitor

In order to obtain a Grant of Probate or Letters of Administration which are documents that give authority to deal with the estate of the deceased, the proposed executor or administrator must make application to the Supreme Court. It is possible for contested probate lawyers to challenge a will both before and after the issue of a grant of probate or letters of administration :-

  • A proposed grant of probate can be delayed and subsequently challenged in a court of law by the use of a 'caveat' which is filed at the Supreme Court and puts the applicant on notice of any subsequent application for a grant thereby allowing disputed will solicitors the time to issue legal proceedings in appropriate circumstances.
  • An application can be made to the Supreme Court after the issue of a grant of probate or letters of administration to challenge a will if there is inadequate provision for dependants who are defined by statutory provisions.
  • A grant can be revoked in limited circumstances including where it has been made to the wrong person if a later will is discovered or if it is irregular and was made when a caveat was in force or if it has become ineffective as in the case of the executor becoming mentally ill.

Solicitors Legal Advice

Our Australian solicitors may be able to handle your will contest matter on a No Win No Fee basis (or contingency cost agreement). If you would like to find out more, call our helpline or complete the contact form and a member of our legal team will respond to your enquiry as soon as possible.

Our solicitors who have offices in Adelaide, Brisbane, Canberra, Melbourne, Perth and Sydney deal with matters relating to disputing or challenging wills and contested probate issues. The law varies dependant on the domicile of the deceased, where the will was executed and the location of the assets and as a result there are often different statutes, rules, protocols, practices and time limits applicable to distribution of the estate. Our qualified solicitors operate nationwide and can assist you in every Australian location. If you would like free initial advice with no obligation just complete the contact form and a specialist solicitor will phone you immediately.

HELPLINE: 1800 455 886

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