Challenging Wills - Know Your Rights
This is what you need to know to decide whether to challenge a will:
When can I challenge a Will?
You are able to challenge a Will if you are faced with a Will that:
• Excludes you completely or leaves you with inadequate provision;
• Was prepared as a result of undue influence of another person;
• Was written by someone who wasn’t mentally able;
• Is not clear;
• You believe is not the last Will; or
• Appears to have been changed by another person.
If you decide to challenge a Will you need to lodge an Application with the court within the time frame required in Victoria.
Who can challenge a Will?
If you want to challenge a Will because you have been left out or you are not happy with the amount left to you, you need to show that you are eligible to bring a challenge.
Not everyone can challenge a Will.
Most challenges are made by a spouse, partner, children and step-children of the deceased.
If you are not in one of these categories, you should get advice because your circumstances may mean you are eligible.
Probate and when to challenge?
You have 6 months from the date of the Grant of Probate or Administration.
Probate or Administration describes the process of lodging a Will with the Supreme Court after death and asking the court to make an Order that the Will is valid or if no Will an Order appointing a representative to act for the estate.
If you want to challenge a Will, relevant factors include:
(a) The nature of your relationship with the deceased;
(b) How long you knew them;
(c) Whether they had any responsibility towards you;
(d) How much you earn and what your financial need is;
(e) Whether you made any contributions to the welfare of the estate of the deceased;
(f) Your personal details like your age and health;
(g) The size/ nature of the estate; and
(h) Whether the deceased had/to what degree a responsibility towards anyone else.
What is the claim process?
When faced with the decision whether to challenge a Will it is common to feel unsure or overwhelmed by all the legal talk and tasks.
You should not be.
Most disputes never get to Court and are settled by negotiation at an out of Court settlement.
If Court action is required the process to settling your Will dispute is usually less than 6 months.
What will it cost to challenge a Will?
To challenge a Will should not cost you anything out of your pocket.
Any settlement pre-court action would include that your costs be paid out of the estate.
The same applies to any Court action settlement.
Get Advice now
What you need to know is whether you have a case.
To figure this out consult us now.
We offer free phone/first consultation advice and act (“no-win no-fee”).
Galbally & O’Bryan is one of Victoria’s leading Will dispute lawyers.
Both Andrew and Carl will review your case and provide clear, easy to follow advice and take action to give you the best possible outcome.
How to contact our Office