Contested Wills: How Hard Is It To Contest A Will?

Do you know what happens to contested Wills? Wills contain the provisions of a deceased and who and how much they will receive from it. However, not all Wills are successful in providing their beneficiaries with their inheritance the first time. Why? Because beneficiaries can contest Wills.

Beneficiaries contest a Will because they fear that they have not received adequate provision. They probably wanted more or claimed that another beneficiary in the Will received more than the required amount. This would be unfair for other beneficiaries who deserve more than what was provided in the Will.

What Do Contested Wills Reveal?

Contesting a Will reveals a lot, which may include family quarrels, which may bring out deep-rooted family issues. The death of a loved one brings out either the best or the worst in a person.

Did some family members hate the deceased? Were there people who were very dependent on them and feared for their safety after their death? Beneficiaries should ensure that their emotions do not interfere when Will contests are underway.

It's better to think that this happens to ensure that everyone gets a fair share of the inheritance. Yes, this may also lead to parties opting for court proceedings, especially if the inheritance is of high value. So, it's best to be well-equipped about Wills and estate law matters when you want to deal with contested Wills.

What if the Will Is Invalid?

Wills can not only be contested but also challenged. Sometimes, people who contest a Will eventually find out that a Will may be invalid. Let's look at some factors that affect the validity of a Will:

1. Undue influence was present in the Will-making
2. The Will-maker's lack of testamentary capacity
3. The present Will is outdated
4. Fraud and forgery

Are You One of the People Who Can See the Will?

First, we need to know if you are an eligible person to see the Will or not. Section 54 of the Succession Act 2006 lists the criteria for who can view a Will, which are the following people:

1. People named or referred to in the Will, whether they are a beneficiary or not
2. Any person named or referred to in the Will in an earlier Will as a beneficiary. So, yes, the deceased's ex-spouse can also view the Will, including children the deceased has in that relationship.
3. The deceased's surviving spouse or de facto spouse, or partner
4. Children of the deceased
5. The parent or guardian of the deceased person
6. Any person who would have the entitlement to a share of the deceased estate if the deceased died intestate. Click here to read our article about intestacy laws and know who is eligible to view the Will if intestacy happens.
7. People who may have a claim against the estate, including creditors, if the deceased has outstanding debts.

So, do you think you're eligible? Then let's go to the next step about contested Wills.

A Family Provision Claim Is the Way!

The only way to contest a Will is through a family provision claim. Here are the people related to the deceased who can apply for this:

1. Wife or husband, including ex-wife or ex-husbands
2. A de facto spouse or partner, which also includes a same sex partner
3. Children
4. Dependents of the deceased, either wholly or partly. This can be a person who was, at the time, a member of the deceased's household. Grandchildren, a close friend, or even caretakers can be under this category
5. Any person with whom the deceased had a close relationship

It's important to remember that the people above must demonstrate financial need if they believe the Will's provision is unfair. If they're not careful, the inheritance they may receive might cover all the legal costs involved. In most cases, contesting a will means that you pay all legal costs and other associated fees out of pocket, even if your case is unsuccessful.

A Case About Contested Wills

Sun v Chapman [2021] is a case that highlights Wei (Rose) Sun, who sought a family provision order to the Supreme Court. However, on August 4 2021, the court dismissed Rose's family provision claim. Why? They were not persuaded that Rose's de facto relationship continued with Richard (the Will-maker) up until his death.

Richard's conduct-in making a statutory declaration about the defacto relationship and then not clearly ending the confusion-was found to have contributed to the cost of unravelling what was a complicated relationship.

Afterwards, the executor offered a compromise to Rose on March 20 2021. This was the sale of the Seaforth property (the major asset) and an allocation of $420,000 to Rose. This also included her costs (legal fees), among other payments, but Rose did not accept the offer.

Because of this, the executor sought an order for Rose to pay his costs, because of the rejection of the formal offer that was more favourable than the result she achieved eventually at the trial.

Rose's claim was deemed "far from being reckless or foolish" and the deceased contributed to the confusion. So, the court exercised its discretion to deviate from the usual rule that costs follow the event (the loser pays). The Executor's costs were paid by the estate, not Rose.

Read: Executor Duties & Legal Assistance Guide | JB Solicitors

Our Legal Expertise for Distraught Family Members

Every legal matter concerning Will disputes and estate disputes will spark a lot of tension between the family members of a deceased. What was once a peaceful family may end up in shambles because of inheritance and money. You'd probably hear your sister asking for further provision, the eldest son not getting anything, the ex-spouse demanding that the Will-maker has a moral duty to provide maintenance.

In times like these, it is important to obtain legal advice from us at JB Solicitors. We can act not only as your legal representatives at court but also as executors for people who have Wills. Our Wills and Estate lawyers understand the stress that our clients who contest Wills, especially if they don't have proper provisions from a Will.

If you and your family members wish not to go to court, you can opt for our estate litigation and mediation services. This is far less costly than court proceedings, which can risk a beneficiary's entire inheritance. With our help, you don't have to risk your inheritance or break the bank.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.