4 Oct 2013Dad cut me out of his will. I was carer for a person for years yet all they left me was their armchair. My spouse left it all to a secret lover. My step-father got mum’s fortune. Grandma left the mansion to her cat.
So on what grounds might I be able to challenge the will? Josh Crowther, a wills specialist at Stacks Law Firm, makes these 10 points:
*First you have to be legally eligible to make a claim. Eligible challengers include husbands, wives, de factos, same-sex partners, children, former spouses, grandchildren and in certain circumstances grandchildren and people who were members of the deceased’s household.
*A claim has to be made within 12 months of the day they died.
*You might have a claim if there are doubts about the mental capacity of the testator (the will maker) or whether someone pressured the testator into leaving assets to certain people.
*If you’re an eligible person you might have a claim if the testator failed to adequately provide for you.
*If you suspect forgery or a later will you might be able to mount a challenge.
*Just being a relative or partner isn’t, on its own, enough to succeed in a challenge. The judges have no set amount to pay out. The court will consider whether a deceased made inadequate provision for a challenger’s education, maintenance or advancement in life. If so, the court must determine what provision ought to be made considering the relationship of the deceased and the applicant, the size of the estate, the applicant’s financial needs and circumstances, and the circumstances of others who will receive a benefit from the estate.
*In most cases an estate will be frozen when a claim is made. Executors can sell assets and convert them to cash but can’t distribute them until the claim is finalised. An applicant can apply to the court for an injunction or freezing order to stop selling of assets until the claim is finalised.
*Many claims are settled out of court with a compromise but courts can rush a claim if there is hardship involved.
*If there is no will, the law provides a set list of people eligible to benefit from the estate. The same rules of challenging apply to those who feel they missed out.
*Claimants normally pay their own costs but if the claim is successful their costs are usually paid by the estate. Costs of the executor or administrator of the estate are paid from the estate.
It’s best to get skilled, objective legal advice before deciding to embark on a challenge to a will as sometimes emotion can cloud good decision-making.
For more information please see Can an adopted child challenge the will of adoptive parents?
