CHALLENGING A WILL’S TERMS
As at 18 May 2021
Family Provision Act Claims/Unfair Wills
The most common grounds for challenging a Will is that no reasonable or adequate financial provision has been made in the Will for the person challenging the Will. The person challenging must prove they have a “need” for financial provisions for their “education, maintenance and advancement” from the deceased.
The Family Provision Act 1972 restricts who can challenge a Will’s terms. There are strict time limits for making these claims. These strict time limits can, and do, defeat claims being made against Deceased persons Estates.
A challenge to a Will is made in the Supreme Court. Such legal challenges are usually funded by the Estate (subject to certain exceptions).
If you are Executor or Beneficiary of a Will that may be challenged, or is challenged, contact Templar Legal Pty Ltd immediately and we will be able to assist you.
Incapacity at time of Making the Will
Legal proceedings can also be commenced if there is concern about the testamentary capacity of the deceased person or whether the Will maker read and understood the Will. For example, often an elderly person may not be able to comprehend (or read) a Will.
In such cases, we would usually need some external evidence such as doctors reports etc. commenting on the “capacity” of the deceased to read and/or understand a Will.
A Will can also be challenged if it is made as a result of undue influence in which there is coercion (not just persuasion) to make the terms of a Will that the deceased did not want to make.
Will Interpretation Disputes
Sometimes uncertainty can arise in relation to the terms of the Will and what it may mean. In some cases it is unclear what the deceased person’s intention was. In such cases you can apply to the Court for an order seeking to interpret or “construe” the terms of the Will or alternatively orders seeking to “rectify” (or change) the Will’s terms so as to reflect the deceased persons intentions in the terms of the Will.
One of the major changes recently to the Wills Act has been a broadening of the traditional scope of what “documents” or may be interpreted as a Will. The Court can now have regard to not just documents that are formally executed as a Will, but a much greater variety of material. This can include expressions of testamentary intent in things or documents such as letters, emails, video tapes and/or suicide notes.
You may wish to consult us in relation to the content of these documents on whether they may contain an expression of “testamentary intent”.
If you have a legal enquiry and will like to discuss the above, please contact our office on (08) 9388 6639
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