How Wills Can Be Legally Questioned in Court

Janson Cody October 11, 2016 Comments Off on How Wills Can Be Legally Questioned in Court
How Wills Can Be Legally Questioned in Court

After a loved one dies and their will is read, some people may not be happy about the deceased’s final wishes. They may be discontent with how much they received or upset about being left out of the will altogether. They may also have concerns about the state of the deceased when the will was drawn up, especially if they had dementia or were gravely ill at the time, situations which could call into question the validity of the will.

Three Terms for Questioning a Will

People who have concerns about the validity of a will after it has been read can either contest, challenge, or dispute the will. While the three terms seem similar, they have different legal meanings.

Contesting a Will

When a will is contested, family members of the deceased may question how much money or property they were left in the will. Some family members may contest a will if they were not mentioned at all. The laws regarding contesting a will in NSW are found under the family provision laws, which are in chapter three of the Succession Act of 2006.

Challenging a Will

Others may question or challenge a will if the deceased was gravely ill at the time of writing the will, or if they were thought to have been influenced by someone to distribute their assets in a certain way. When a will is challenged, the parties involved are asking the court not to grant probate. The main reasons for questioning the validity of a will are undue influence when it was drawn, fraud, forgery, or a lack of mental capacity by the deceased when the will was written.

Disputing a Will

A will can be disputed if its terms need clarification or if there is a question about how the executor of a will is distributing the deceased’s assets. When the terms of a will need clarification, which is known as a construction case, the court decides what the deceased meant to do in his or her will. An administration case is when there are questions about how a will is being administered by the executor.

Time Limits for Questioning Wills

If the deceased’s beneficiaries have concerns about a will and want to contest, challenge, or dispute it, they only have 12 months from the deceased’s date of death to do so. If the date of death is unknown for some reason, the court will set a date based on the information they have. The beneficiaries will then have 12 months from the set date to legally question the will.

Who Can Question Wills?

Only eligible persons are allowed to contest, challenge, or dispute a will. Eligible people may include current and former spouses, children of the deceased, a grandchild who was dependent on the deceased for some or all of their care, or anyone else who was completely or partially dependent on the deceased and who was a member of their household. If you have concerns about how or when a will was written or how the executor is administering it, you should contact an attorney to discuss the case and consider contesting, challenging, or disputing the will.

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