The passing of a loved one is a particularly emotional time, and the complications of a will may give rise to many issues. One, in particular, is the content of the will, and how assets have been distributed. If you believe that a will is invalid, then you may be able to contest a will.
To contest a will, means to challenge a will. Generally, to contest a will, you have to be related to the deceased. Check your eligibility here.
A will is a complicated document that involves many steps to ensure its validity. Here are some important questions to ask before contesting a will:
- Is this the most recent will?
- Was their alteration of the will after it was originally signed?
Once you have located the appropriate will, the following are the most common reasons for contesting a will.
1. Capacity to Make a Will
There is no doubt that writing a will takes a lot of thought. However, there are instances where the deceased was mentally or legally incapable at the time of creating a will. In NSW, a person must be at least 18 years old to write a legally enforceable will. The Supreme Court, however, can approve a will for people under 18 only in exceptional circumstances.
On the reverse side, a person can be considered as mentally incapable, if they were for example, in a vegetable state, or had dementia, at the time of creating their will.
2. Witnesses to the Will
There are many steps to creating a will, to ensure it is legally enforceable. One such step is the inclusion of signatures and witnesses. The will must be signed by its creator, as well as two witnesses who are not mentioned in the will. People who areementioned and gaining assets in the will are known as beneficiaries.
3. Undue Influence
A will can be contested, if it is believed to have been made under undue influence. This means, that at the time of writing the will, coercion took place. However, a person can only make a claim if they have sufficient evidence or was a witness of coercion.
Where to from here? Read our Step-by-Step Guide on disputing a will.
Contest or Not to Contest?
It is easy to feel that you have not gained a sufficient share of a will. However, to contest a will, it is wise to specify why you believe a will is invalid. Simply believing that you have not gained enough assets is not sufficient ground to contest a will. If you believe you have grounds to contest a will, it is recommended that you seek legal advice from an estate planning lawyer.
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