When a loved one dies it can be a very difficult time for family and friends. If however, you find out that you have been left out of a Will, it can become an even more trying time.
However, by seeking the right legal advice and support, the experience of contesting a will does not have to be too traumatic. On the contrary, will contesting is more common than you may think. Unfortunately, many Australians do not leave a proper Will prepared.
In the article below we are going to discuss how the Will Contesting works and what the ground are for beginning the process of contesting a will.
Under what circumstances can a Will be contested? And when do people tend to contest a Will?
Wills tend to be challenged under two circumstances. Under first, it is possible to argue that the Will is not actually valid. This may be because the will maker was not in able to produce a will with proper testamentary capacity. It may also be possible in some case that undue influence, such as fraud or coercion, may be at play.
Under Australian law, when the testator is said to have a ‘lack of capacity’, it may be ground for challenging a Will. However, at what point does a testamentary capacity become so diminished that a Will is not considered valid? This question depends on the circumstances of the case.
The other way that a Will may be contested, is relating to the needs of the beneficiaries and dependant parties. This the most common way that Wills tend to be contested in court. If a dependant step-child, for example, was not properly written into the deceased’s Will, there may be grounds for contesting the Will. This would largely be dependant on the nature of the relationship between the potential beneficiary and the testator.
Although it is known to have happened, contesting a Will vdoes not commonly work in favour of those challenging the Will. The testator’s wishes are respected at all times, and often this can mean that such cases are closed fairly early on.
What are some examples of a dependant person winning a Will contesting case?
There are many examples in the history of Australian law where a dependant person has not been adequately provided for in a Will, and thus has been awarded reimbursement. One common examples may be if the person in question is a disabled dependent child of the testator. Another common example of a dependant person winning a Will contesting cases would be the scenario where the individual is is in a long-term relationship with the deceased and has been unable to provide for themselves.
Are Contested Wills a common occurrence in Australia?
In Victoria alone there are over 20,000 people applying for a probate in any given year. Of all these cases, only 1% are disputed. That still means that there are over 200 cases each year.
How could Will Contesting be avoided in the first place? Is there potential for a marked drop in challenged Wills in Australia in future?
Many Australians do not have a Will prepared properly in event of their death. By having a better understanding of the legal obligations needed when creating a Will there could be a significant drop in the number of cases across Australia. What complicates this is that there are different legal requirements across Australian states. The laws in Victoria are very different to those in Queensland, for example. In some countries there are also even more different laws. For example, the idea of heirs inheriting assets is entrenched in some countries and may see a child given advantage of a spouse per say. The best way to avoid running into these issues is to prepare a Will properly with a local estate lawyer.
The more informed you are, the less likely you are to run into the possibility of a will contesting issue. This also applies to your loved ones. If you are worried about the state of another loved one’s affairs, you might wish discussing their Will with them, or atlas suggesting they seek professional guidance in preparing a Will. It is a common misconception, for example, that a video can count as a Will. While this may be true in some rare cases, this hardly ever applies.
One of the other ways that challenged Wills may be reduced in future is for the general populace is if loved ones of the deceased better understood the legal situation around contesting a Will. Oftentimes a dispute has no case.
The third thing that should be considered is the motivation for challenging a Will. Sometimes finances and emotions can get mixed up in all the wrong ways in a Will contesting cases. If someone is contesting a Will, they may actually be acting out on some form of need to redress a broken relationship. Unfortunately, this often just results in a lot of unnecessary legal fees and further rifts between family and loved ones.
Reasons to make a Will today and avoid conflict tomorrow
Whilst making a Will might be confronting and not at the top of your list of priorities, we recommend you take serious consideration of writing your Will. Do not just write a Will off the cuff, and we cannot vouch for those DIY Will kits. A poorly written Will can be more costly and stressful for your loved ones than just donating a bit of time and money to nutting something out with a professional estate lawyer.
It does not matter if you are only in your twenties, or you are already approaching ninety. A Will is crucial if you want to leave your loved ones with less hassle and grief when you pass. If you a young parent, creating a Will is more important than ever. Below we have listed five good reasons why you should take time right now to prepare a Will in event of your death.
1. If you die without one, a stranger will be responsible for diving up your property.
The obvious disadvantage of leaving behind no proper Will is that you will have no say in how your estate gets distributed amongst your loved ones when you are gone. There is no guarantee that your assets will be fairly distributed. Rather, a court, that does not know you, will be responsible for such things. One of the best things you can do is write a very clear Will, and have it revised by a professional estate lawyer on the chance that you have missed something.
2. It may not be clear who will have custody of your children in the event that you die without a Will.
You must have a legally appointed guardian for your children, without one it becomes the court’s responsibility to look after them. You may consider a grandparent, friend or family member in the event of your death. If protecting your children’s future isn’t a good enough reason to write up a Will today, then we don’t know what is!?
3. By creating a Will you will avoid conflict arising between loved ones when you pass.
It doesn’t matter how well you and your family and loved ones get along. Death and the distribution of assets can be very trying and can cause rifts between those you care about. One of the best things you can do to help your family during the grieving process when you are gone, is to make a very clear Will. Yet again, organising an appointment with a qualified estate lawyer is a very smart move. DIY kits tend to be helpful, but there is always the chance that wording you use may be wrongly interpreted. Having an expert in ‘legalese’ is a wise idea.
4. A Will doesn’t just help those around you, it provides you with peace of mind.
Nobody wants to worry about how their family will go when they are gone. By preparing your finances appropriately and having well prepared Will done, through a reputable estate lawyer, you are leaving your family in the best possible way. You are giving your loved ones the gift of less stress and grief in a very difficult period.
5. Wills do not have to be hard to write, don’t hesitate, get one prepared today.
Law firms are able to prepare Wills for very modest fees. Although they are very important, it is not hard to prepare a Will when it comes down to it. Call up a professional estate lawyer and ask them for quote or estimate. You will find that it is not that hard tot find time and organise a Will over the course of an hour.
There are other options as well as contacting a law firm. You may wish to get in contact with a trustee company to make your Will. Yet again, you may contact them for a quote. At the very worst, you can get a DIY Will kit from your local post office and simply follow the instructions. You do not want to fill it out improperly though, as this can have dire consequences in the event of your death.