Disputes over a Will can arise in the following circumstances:
- Over the Will itself – Was it validly made? Did the person making the Will have capacity? Was it forged or made under duress?
- Are the amounts left in the Will fair?
- Are the Executors/Administrators administering the estate properly?
- Is a person entitled to claim as a “de facto” spouse of the deceased?
The existence of a Will
It is not uncommon that the person who is the likely Executor refuses to provide a copy of a Will (or even to deny any knowledge of the existence of a Will) to a person who would reasonably be expected to be a beneficiary under the Will. In such circumstances, legal advice should be sought as a matter of urgency.
Defects in the will:
- A Will must comply with certain formalities, such as being properly signed, dated and witnessed by two persons who were present when the Will maker signed.
- However, even if these requirements are not met, the Court may give Probate of an “Informal Will”.
Quite often a person makes a Will shortly before their death or changes an existing one.
In such circumstances a claim may arise that the Will maker has been unduly influenced by a person to make their Will in a certain way (usually at someone else's expense).
Challenge a will
The Family Provision Act allows certain categories of people to claim if a Will fails to make “adequate and proper provision” for them. What is adequate and proper depends on all the circumstances including the size of the estate, the financial position of the applicant and the beneficiaries named in the will and the degree of estrangement between the applicant and the deceased. Estrangement is, unfortunately, a common occurrence and does not usually mean that a applicant should be excluded from the will altogether.
The persons who can apply are:
- A spouse, including a de facto spouse;
- Children of the deceased (including adopted children);
- In certain circumstances, grandchildren of the deceased;
- Parents of the deceased (but usually only if they were financially dependant upon the deceased in some way).
It is important to note that:
- In Western Australia, special provisions apply for step children
- There are often issues as to whether a person was or was not a de facto of the deceased
- There are time limits that apply to bringing a claim.
If you want to challenge a will please contact us for a no-obligation initial consultation