All There Is to Know About Challenging a Will
Posted on: 17 June 2021
Will disputes can be frustrating. Besides the pain of losing a loved one, legal cases resulting from will disputes can make the entire experience quite overwhelming. Challenging a will is a claim to dispute or strike it out. It entails pleading a case to the courts that the will should not be considered the testator's (the one who made the will) last valid will. The process can be challenging, and in most cases, laws regarding will disputes will vary depending on where you are in the country. However, knowing a thing or two about challenging a will can go a long way toward helping you understand what to expect. With that in mind, here is all you need to know.
Eligibility for Challenging a Will
Not everyone is eligible to challenge a will. Generally, only the beneficiaries in a testator's previous or current will and persons who would otherwise be entitled to the deceased's estate if there was no will can challenge its validity. Therefore, eligible claimants may include, amongst others, the spouses or de facto spouses, dependent ex-spouses, children, grandchildren, stepchildren, parents, etc. It would be best to engage a legal professional to help you understand the specific rules regarding eligible claimants as they apply in your area.
Grounds for Challenging a Will
Once you determine your eligibility to challenge a will, it's imperative to know the circumstances under which you can do so. Generally, testamentary capacity (the testator's mental capacity), undue influence, forgery and fraud are the main reasons for challenging a will. If you plan to challenge a will on any of these grounds, you will have to provide enough evidence to support your claim. For instance, in the case of testamentary capacity, you can demonstrate that the testator lacked the mental capacity to form the will because they were under the influence of a substance or because they suffered from insanity or dementia. Evidence of physical or psychological threat may come in handy when proving duress or undue influence. If you have any other form of evidence that suggests the testator was unaware of the will's contents or didn't approve of it, it would be best to share these with your solicitor, as they will be crucial to the success of your case.
Timing
While rules on when to challenge a will vary across the different states and territories and tend to be dictated by where the deceased died, you can challenge a will before or after probate has been granted. Probate is a document issued by the court when it's satisfied that the will is valid. You have better chances of challenging a will if you do it before the grant of probate, so remember to get in touch with a legal professional early if you have any doubts regarding the will's validity.
Share