When making a Will, it is important to ensure all dependants are provided for. However, this is not always the case and many people find themselves disappointed and subjected to undue financial hardship as a result of being left out of a Will. When this occurs, there are possible avenues available for many people to successfully challenge a Will if the following considerations are met.
Legitimate grounds are necessary
The legitimate grounds where a Will can be contested are similar in all Australian States and Territories. These circumstances include instances where;
- The Will that was executed was not in fact the final will made by the deceased.
- Family members are not adequately provided for.
- The execution of the Will was not carried out lawfully.
- The Will maker was influenced when signing the will.
- The Will has been tampered with.
- The mental capacity and understanding of the Will maker was insufficient at the time of the execution.
Legal representation is imperative
Legal advice should always be sought before pursuing an action to challenge a Will. A lawyer can assess the potential of successfully challenging the Will and can give advice throughout the difficult process. There are a number of factors that will influence the success of an action to challenge a Will including time restraints and the nature of the relationship to the deceased. An experienced lawyer can assess whether your claim has a chance of success, and pursue the claim through to successful completion if so.
Factors the court will consider
When making an order in relation to the challenge of a Will, the Court will consider:
- The nature and length your relationship with the deceased
your conduct and character.
- Your financial needs, resources and earning capacity.
- The responsibilities and obligations of the Deceased to you and the named beneficiaries.
- Contributions made by you to the Deceased’s welfare, family or Estate.
It is not only beneficiaries who can challenge a Will
Any family members or other people who share a close personal relationship with the deceased and who will face undue financial hardship as a result of being left out of the Will can make an application to contest the Will.
A TFM claim arises in situations where a person can prove that the deceased person held a responsibility to provide for their ongoing support and this has not been achieved through the terms of the Will. The eligibility of those seeking to apply for a TFM claim has been amended to narrow the eligibility of claimants to the following relationships with the deceased;
- Spouse or domestic partner of the deceased.
- Child or stepchild of the deceased.
- A person who, for a substantial period of time believed that the deceased was his or her parent and was treated by the deceased as their child.
- Former spouse or domestic partner of the deceased.
- Grandchild of the deceased.
- A member of the same household as the deceased.
Strict time limits exist
When a person is not a beneficiary in a Will, an application for contest must be received by the Court within 6 months of the date of the execution of the Will.