Three ways a will can be challenged

Three ways a will can be challenged law

The reasons estates are challenged are as wide-ranging as families and relationships are diverse. Commonly estate disputes involve blended families (i.e. second spouse or step-children), children that haven’t had a relationship with their parent for some time and children who have problems managing money.  

This article explains some of the most common types of estate claims including family provision applications, challenges to the will be based on lack of capacity or challenges to the will based on undue influence. 

1. Family provision application  

Family provision applications are the most common types of estate claims. These types of claims are made by eligible persons who believe they have been treated unfairly in the deceased’s will or under the rules of intestacy (these are the rules that apply when someone dies without a will).  

Who is eligible to make a family provision application? 

  • Children including minor and adult biological children, stepchildren and adopted children 
  • Spouses including husbands / wives, de facto partners, civil partners  
  • Dependent former spouses  
  • Dependants who are parents of the deceased, a parent of a minor child of the deceased or a person under 18 who were dependant on the deceased at the time of their death 

Are there any time limits? 

In Queensland there are time limits that apply to family provision applications. Written notice of the intended application must be given to the executor or administrator within 6 months of the deceased’s death and the application must be commenced in court within 9 months of the deceased’s death. 

How does the court decide family provision applications?  

There are several factors that are considered when determining family provision applications. These include: 

  • The size of the estate 
  • The circumstances (financial and health) and needs of the applicant 
  • The applicant’s relationship with the deceased 
  • Whether the applicant contributed to the building up of the deceased person’s estate  
  • Whether the applicant provided care and support to the deceased 
  • Whether there are any other competing claims on the estate  
  • The circumstances and needs of the beneficiaries  

There is no mathematical formula to determine family provision applications and each case is determined on the facts.  

Family provision legislation is widely debated because on the one hand people should have freedom to make a will how they wish but on the other hand the law says that we have a moral obligation to adequately provide for vulnerable family members. Family provision applications can end in contested court litigation and cause family disharmony, however, with the right advice and early negotiations, it is possible to avoid lengthy legal proceedings and breakdown in relationships.  

2. Lack of capacity  

If someone has concern about the validity of the deceased’s will, they may seek to challenge the validity of the will on the basis that deceased lacked capacity to make the will. Frequently claims about the validity of the deceased’s will are raised alongside family provision applications. 

Wills are presumed to be valid so long as they meet the formal requirements of a will (i.e. signed and witnessed correctly). This presumption may be able to be overturned if there is evidence the deceased did not have sound mind, memory or understand of their will or know and approve of the contents. 

As our population is living longer, there is greater vulnerability to mental and physical disease such as Alzheimer’s disease and dementia and challenges to the validity of wills are becoming more common.  

3. Undue influence, coercion, fraud or suspicious circumstances 

Disappointed persons may also seek to challenge the validity of a will on the basis: 

  • the deceased was unduly influenced or coerced into making their will; 
  • that deceased’s will was made fraudulently; or
  • there were suspicious circumstances (e.g. the person who prepared the will benefits under the will).  

To be successful in a claim of undue influence, the evidence must prove the will being challenged was not the free and voluntary act of the deceased.  

If you wish to challenge the validity of a will of a deceased person or are an executor defending a claim, you should obtain advice from a lawyer as steps may need to be taken quickly to protect your interests.  

If you’re considering making a claim, book in an obligation-free chat or call us on 07 3174 5730 to obtain an assessment of your claim. 

If you’re an executor, book in an obligation-free chat or call us on 07 3174 5730 to discuss your duties and steps you should take in defending any claim against the estate.  

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