Legal Grounds for Contesting a Will

The death of a loved one is a trying time. It can become even more stressful if there is a problem with the Will or the distribution of assets.

If a Will is vague, outdated, invalid or if family members have problems with how the estate’s assets are distributed, the Will may be contested.

There are limited circumstances where a Will can be contested. In this article, we share the common legal grounds for contesting a Will and who is allowed to contest a Will in Queensland.

What is a Will?

A Will is a formal document that details how you want your estate to be distributed after you pass away. Wills typically contain instructions on selling or transferring assets to beneficiaries, caring for children and dependents, and who will manage your estate while it’s being distributed.

Creating a Will is the best way to manage your estate and look after your loved ones when you pass away. A professionally-drafted Will can reduce the stress on your family and provide money and assets they can use for years to come.

Legal Grounds for Contesting a Will

Wills and Estate Plans are complex documents that should follow recognised formats. They can contain complex instructions for your estate and loved ones, and the Will may be disputed if there are errors or concerns about its contents.

The Validity of the Will

There are many circumstances where the validity of a Will can be challenged. A Will may be considered invalid if:

• The Will is forged, or if it was created under undue influence
• The Will does not reflect the intentions of the deceased
• The Will is not signed or witnessed properly
• The Will is not current, or if there is confusion over which version is current
• The document does not meet the formal requirements of a Will
• The deceased did not have the capacity to create the Will

If you challenge a Will, it becomes your responsibility to prove your claim. For instance, if you claim that a Will does not reflect the true intentions of the deceased, you must provide evidence of their intentions for a court to rule in your favour.

Family Provision Claims

The most common grounds for challenging a Will are Family Provision claims.

The spouse, de facto partner, child or a dependent of the deceased can make a Family Provision claim if the Will does not include adequate provision.

For example, if one of your children is left out of your Will (intentionally or unintentionally), the excluded child may have a valid Family Provision claim.

For a claim to be successful, you must demonstrate that the Will does not provide anything for you, or that any provision is inadequate. This can be difficult to demonstrate. We recommend speaking with a lawyer for advice.

In determining whether Family Provision claims are valid, the court will consider:

• Your financial position and the position of other Beneficiaries
• Your standard of living
• Your relationship with the deceased
• Whether the deceased has provided support in the past
• Any promises the deceased made to you
• Contributions you have made to the estate of the deceased

Your claim will only be successful if you can demonstrate that your financial needs are greater than the needs of any other Beneficiaries. Or, the estate must be large enough that redistribution does not negatively affect any other Beneficiaries.

Interpretation of the Will

A Will can be fair and valid, but there may be confusion over some of the clauses it contains. For example, a clause may be vague, or it may be able to be interpreted in multiple ways.

You can challenge the interpretation of the Will by contacting the Executors to discuss the issue. If there are still questions over the interpretation, or if you think the Executor is incorrect, you can bring an application to the Supreme Court of Queensland.

Undue Influence

A Will is created under “Undue Influence” if a third party coerces the Will maker to make decisions that go against their wishes. Wills created under undue influence are invalid and they can be challenged in court.

There are two types of undue influence:

• Actual undue influence occurs when you can prove that the Will was created under influence of another person.
• Presumed undue influence occurs where there is no direct proof, but the Will maker had a relationship that may expose them to undue influence, e.g. the relationship between a doctor and patient.

If you suspect undue influence, you’ll need to challenge the will in court. You need to show that:

• The Will distributed assets in a way that was inconsistent with the Will maker’s intentions
• The Will maker was trusted or was dependent on the person who exerted the influence
• The Will maker was vulnerable to undue influence
• The person who exerted influence took advantage of the Will maker and benefited from the distribution of assets

Proving undue influence is particularly difficult. Contact your Will lawyer if you suspect that a Will was created under coercion.

Who Can Challenge a Will?

If you are concerned about the contents or validity of a loved one’s Will, you may be able to challenge it. In Queensland, a Will can only be challenged by three groups of people:

• The spouse or de facto partner of the deceased
• A child of the deceased (including biological child, step-children and adopted children)
• A dependent of the deceased at the time of their death

In determining if you are a dependent of the deceased, the court considers whether you relied on the deceased for financial support at the time of their death, and your personal circumstances.

Discuss Your Rights With the Team at FP Lawyers!

Challenging a Will is a complex topic. There are several legal grounds for contesting a Will, but they can be difficult to prove in court.

If you are unhappy with the contents of a loved one’s Will, or if you want to create an estate plan that avoids confusion, talk to FP Lawyers. We’re a team of experienced Wills and Estates Lawyers that can help you with drafting, managing, administering and challenging Wills.

Contact us for a confidential consultation today.