Deciding to contest a Will can be a difficult decision to make. When a loved one passes away, it is a very emotional and difficult time for everyone involved. It can be even more upsetting if someone feels as though they have been unfairly left out of the Will. The law in NSW allows for a Will to be challenged under certain circumstances.
Whilst the law recognises that a person making a Will has the right to distribute their estate as they see fit, there are also laws in place to protect people to which the deceased had an ethical responsibility.
Contest if you are one of the following:
• A surviving husband or wife of the deceased person (this includes de-facto and life partners).
• A child of the deceased person, including an adopted child.
• A person with whom the deceased person was living in a close relationship at the time of death.
• A grandchild who was at any time wholly or partly dependent on the deceased.
• A former wife or husband of the deceased person.
• A person who was dependent upon the deceased person.
• In NSW, a claim to challenge a Will must be made within 12 months of the deceased passing away, otherwise property and assets can be distributed and lost, preventing the recovery of an inheritance.
There are numerous grounds upon which a Will can be contested including:
Duress of undue influence
A Will is only valid if it is made voluntary by the person and at their free will. If coercion is seen to have been brought upon that person, the Will can be contested and the details set out in that Will may be set aside by the Court.
If the deceased lacked the necessary mental capacity to make the Will, the Will can be contested. Effectively meaning the deceased did not understand the nature of the Will they were making. Incapacity most often occurs in relation to the elderly and those suffering from an illness which affects their mind.
Contract to make a Will
Married and de facto couples sometimes may chose to enter into a binding contract to make their Wills in a certain way. Later on, if a person makes a Will that is inconsistent with the contract it can create problems. If the contract has been properly drafted and is legally enforceable, a person may contest the Will.
If you feel your share of the Will is unfair or have been left out of a Will entirely, our dedicated team of lawyers can work with you to contest the Will. Submit an online enquiry or call us today on 1300 QUINNS (784 667).