The death of a loved one can be a challenging time fraught with big decisions. In some cases, a person may feel as though they’ve been left out of a loved one’s will or treated unjustly by the deceased (also known as the Testator). At other times, a person may call into question the validity of the will itself. Keep reading to learn more about why you might consider disputing a will, as well as if you’re eligible to do so.
Common Reasons for Disputing a Will
There are several reasons why a will could be disputed, whether it’s the will of a loved one or your own. Most commonly, someone with a relationship to the Testator may feel as though they’ve been unjustly treated, insufficiently provided for, or there has been an uneven distribution of assets among a Testator’s offspring. A loved one may also have been left out of the will entirely and may wish to contest the will to ensure a fair share of the Testator’s estate.
There may also be instances where a loved one wants to challenge the legitimacy of the will. The reasons why a will’s validity could come into question include:
- The deceased did not have the mental capacity to make their will at the time they signed it
- The will was not drafted and signed in accordance with the law (i.e. suspected fraud or forgery)
- One of the will’s witnesses inherit from the will
- The will was made under the influence of other parties
Other reasons where a will might be disputed include when executors or trustees need to be removed, beneficiaries of the will are missing, for clarification purposes, or when there is a delay in proving the legitimacy of the will.
These claims are also frequently referred to as Part IV claims or Testator Family Maintenance (TFM) claims.
Who Can Dispute a Will?
Although will disputes are common, it isn’t something that can be carried out by anyone. Laws vary by state, but generally, a person must have had a relationship with the Testator to be able to challenge their will.
According to the Succession Act 2006 s57, this includes the Testators:
- Wife or husband
- De facto partner
- Former husband/wife or de facto partner
- Child, stepchild, or grandchild
- Father, mother, brother, or sister
- Caregiver
- A parent of the Testator’s child
- Someone who relied financially on the deceased
Is There a Time Limit to Dispute a Will?
Time limits vary across states, but in Victoria, you have exactly 6 months from the date of a grant of Probate to dispute a will. Alternatively, you have three months from the time you give notice to the estate.
The court can only issue an exemption for a late Family Provision Claim under the Family Provision Act 1969 if it believes there is adequate cause.
In Summary
If you believe you’ve been unfairly treated or inadequately provided for within a loved one’s will, or are calling into question the will’s legitimacy, then a lawyer can help. They will assess if you are entitled to make a claim and guarantee that your application is submitted within the time constraints.
If you or someone you know wants more information or needs help or advice, please contact us at (03) 9422 5439 or email laurie@irvinelawyers.com.au.
Looking for an estate dispute lawyer in Melbourne? We have lawyers in South Morang or Warrnambool ready to assist you.