It is very common for people to feel they have not received their fair allotment when the will of a deceased person is read. There are many emotions and some people feel shame about questioning what the deceased person put in their will. However, the law sees things differently. The law will in effect rewrite a will where it sees that someone who was close to the deceased who should have been provided for in their will has not been.
Families can be complicated and the law tries to look beyond the emotions and achieve a fair outcome for all those close to the deceased.
It is a common and a relatively straight-forward process to challenge a will. The most common way to challenge a will is a claim based on the Family Provision Act. We set out the steps for such a challenge below.
We note that it is possible to challenge a will other than under the Family Provision Act – such as a claim based on a lack of capacity of the deceased (as in they were not of sound mind when they signed the will) or someone was exerting undue influence over the deceased when they signed the will (such as a new wife or husband – often much younger). However the most usual way in Australia is a claim under the Family Provision Act that you are an eligible person close to the deceased who was not adequately provided for.
Step One: Are you an Eligible Person: Eligible persons can include husbands, wives, de factos, kids, stepkids and grandkids – as well as people who were members of the deceased’s household who were dependent on the deceased.
Step Two: Has proper & adequate provision been made in the will for you: This is hard to generalise about, but ask the question “has their been sufficient left to you given your level of reliance on the deceased and state of life, other income etc.”
Step Three: Find a lawyer: You will need a lawyer. Make sure you move reasonably quickly to find a lawyer as, generally, there is a cut off of 12 months after the date of the deceased’s death to bring a claim.
Step Four: File proceedings in court: The executor of a will is unlikely to agree to give you more than that set out in the will until such time as you file proceedings and put on evidence of your claim. However, if your claim is a good one, it is likely that the executor will try to settle with you.
Challenging wills is a common occurrence. If you think you might have a claim, you should speak to a lawyer. This information is general in nature and should not be relied upon as legal advice.
Reinart for www.LawPath.com.au – free legal answers to your questions