Article by Charlotte Black – Associate
The passing of a loved one is often a stressful and unsettling event. However, that stress only increases if you feel that you have not been sufficiently provided for in a deceased’s Will. You may feel that you have not been provided for adequately or perhaps the deceased has written you out of their Will entirely.
You may also feel that the deceased’s Will should not be used as it was made under improper circumstances.
The question we are often asked at Eales & Mackenzie is what can be done in these circumstances. It is important to remember that beneficiaries have rights and there are several avenues in which you may be able to challenge a Will or Estate.
How can I challenge someone’s Will?
There are a number of grounds under which you may seek to contest a Will, some of which are obvious and others of which are not.
You may wish to seek to challenge the Will, arguing that it should not be used at all as it should not have been made in the first place. The question arises as to what circumstances a Will should not have been made and why it can be challenged.
Some examples of challenging a Will include:
Duress or undue influence:
Do you feel that the will-maker was unfairly influenced by another party to make their Will? If so, you may be able to seek that the Will be invalidated as a result of the duress or undue influence.
Proving that the will-maker executed their will as a result of duress or undue influence is difficult to prove. You will be required to provide clear evidence to a court that shows that the will-maker was under some form of duress or undue influence.
Lack of capacity
Do you feel that the will-maker did not have the capacity to make their Will at the time it was made?
This lack of capacity may have a number of causes such as physical illness, and mental illness. The question is however whether adequate evidence can be provided to a court to prove this lack of capacity.
Generally speaking, medical evidence, such as a report from a treating general practitioner or other doctors, is required as evidence of a lack of capacity.
What should I do next?
If you wish to challenge a Will or estate, you should first speak with one of our experienced lawyers. The question of whether you can challenge a Will or Estate is not easily answered. However, the consequences of not challenging an estate when you may have had a right to can be drastic.
If you require specialist advice on filing a claim against an estate, please contact Ms Charlotte Black or Mr Fabio Salemi on (03) 8621 1000 for our Melbourne office, (03) 9331 1144 for our Essendon office or via email at advisors@emlawyers.com.au.
