Written by Angus Miles on May 29, 2019

Knowing How Contesting A Will Works

The death of a loved one such as a parent, sibling or spouse can become one of the most challenging time of a persons life, which can lead to those contesting a will. It creates very strong and determined emotions that can sometimes damage/ destroy relationships. Listed below will be some of the issues Family Lawyers run into in regards to a persons last will and testament and what to do if a will was not properly established. 

Contesting a Will

No Valid Will

One of the most common issues a family lawyer will run into during a dispute for the splitting of assets such as property or money is when no will can be found. This is generally what is meant when a person is asked to get their affairs in order. 

There is usually a conflict of interest between a variety of those involved ranging from close family members, estranged partners to creditors and distant relatives, all who could have perfectly valid reasons to contest a will. 

To die without a physical will has a classification called to die 'intestate' which now subjugates the left over estate to be divided according to the specific laws of intestacy. (These laws are subject to where you live) Such as in Western Australia, Perth, the laws of intestacy are set out in the Administration Act 1903

Once this happens the state becomes the executor of the estate. It takes charge of ensuring ALL of the deceased persons estate has been given to the appropriate persons, it does so without any consideration of previous for family circumstances. (This is very important for those who want to ensure a certain member doesn't receive any part of the estate) 

Valid Will

Such as when there is not a will, all of those involved have the ability to contest the will (within a certain time period) only with much less to stand on in court and have a much harder (and expensive) time proving they deserve a cut. 

The term 'grant of probate' is one used to gain access to a legal document through the Supreme Court of Western Australia which proves the will is legitimate and current. This allows the executors to gain access to and then follow up on the exceptions expressed in the will and split the assets between the beneficiaries. 

making a will

Who Can Contest A Will

Knowing who has the ability to contest a will

  • Children,  including step- children and adopted children,
  • Wife, Husband and De facto partners,
  • Ex-wife/ husband or ex-partner,
  • Grandchildren,
  • Brothers/ sisters,
  • A person who may have been a dependent or
  • Creditor

When will someone contest a will

Knowing how someone will contest a will

  • Depending on the deceased age when they made their will and mental state can allow a person to claim a lack of capacity due to illness, medication or mental capabilities, 
  • An occurrence where the deceased was influenced unfairly during the will making process by a beneficiary and/ or was under duress at the time, 
  • The executor/ manager of the fund is not appropriately dealing with the estate as promised in the will or with the best interests in mind of the beneficiaries,
  • Where the're several copies of the will and it is difficult to determine the valid one, 
  • If the signatures on the will don't look genuine or not signed again after a change was made, 
  • If the deceased made a promise to a claimant that conflicts with the will,
  • If a claimant feel unfairly represented in the will.

Why it's important to have a will

A well written will, will cover many different scenarios along with any and all family, relatives, creditors and more. An example of an in-depth will is one that covers 'the airplane scenario'. This is a thought experiment designed to describe the worst case example that a will might have to cover, where-by you win lotto and decide to take all of your family on a holiday. In the process the plane goes down and it is now up to your will to decide where you estate is to go and nothing can be left to the state. 

A good will can cover everything you might your estate to do/ become after your passing, to the point of declaring a charity if no other option is available. 

Remember that when going to court you should know what to expect, here are a few things to keep in mind: https://www.family-law.co.uk/top-10-tips-attending-family-law-court/ 

Article written by Angus Miles
Angus Miles is on a mission to help people start their legal journey. He understands that for many people, the legal process can be confusing and overwhelming. He knows firsthand how important it is to have someone you can trust when dealing with the legal system.

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