5 Things To Know When Challenging a Will

If you have been left out of a Will, you may have rights.

1. Who Can Challenge a Will?

A spouse (married or defacto) and a child of a deceased person can challenge a Will, or their estate if there was no Will. Someone who was financially dependent on the deceased can also challenge their Will.

2. What Grounds Do You Need to Contest a Will?

If you are looking to challenge a will, certain grounds or reasons to contest must be met, which include:

• If there is a mistake in the Will.
• If the Will is invalid. The Will can be considered invalid for a number of reasons which include if the document is not correctly signed by the Will-maker or testator, there was another Will made at a later date or if someone altered the Will after it was signed.
• If the Will-Maker was under undue influence, pressured to produce the Will or lacked capacity to make the Will.

If any of the above grounds are met, a challenge to the will can be made.

3. How Long Do You Have to Challenge a Will If You Have Been Left Out or Treated Unfairly?

Strict time limits apply.

In Queensland you have 6 months from the date of death to give notice to the Executor of your intended challenge. You have 9 months from the date of death to file your Application.

If you miss the 6 months and the estate has been distributed you may be too late. If you miss the 6 months and the estate has not been distributed, then act quickly to give notice and commence the proceeding. If you miss the 9 months you will need special permission granted by the Court to be able to proceed with your challenge.

Other States have different time limits.

4. What Happens When a Will is Contested?

Once you decide to contest the Will, notice is given to the Executor of this. Try to explore settlement of your claim before commencing proceedings as a resolution will minimise your legal costs.

An Application is filed in either the Supreme or District Court depending upon the monetary value of your expected settlement. In support of the Application an Affidavit is filed. The Application and Affidavit are served on the Executor.

The timeframe for the steps to be taken in the proceeding are agreed with the Executor and a Directions Order is made. The Executor then serves your Application and Affidavit on all beneficiaries under the Will and also on anyone else entitled to challenge the Will.

After the Executor and all persons served with your Application have had the opportunity to file their own material, a Mediation occurs where attempts are made to reach agreement. Mediation is often successful but if not, the challenge proceeds to Court and a Judge decides the outcome of your challenge.

5. How Hard is it to Contest a Will?

Without the right legal representation, contesting a Will and the process required can be often difficult to navigate through. If you are in need of legal advice, get in touch with Kennedy Spanner’s Will Dispute Lawyers, who have expertise in knowing what evidence is required in validating a Will, and are experienced in the procedures that follow.

For a free initial telephone discussion with an experienced Wills and Estates Lawyer, telephone our Brisbane office (07) 3236 9169 our Toowoomba Office (07) 4639 2944, or complete the contact form on this page.

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