3 questions to ask yourself before challenging a will

Published 02 Dec 2014

Losing a family member or a close friend is always a tough process and coming to terms with the situation can take even longer to digest.

However, your pain and suffering can be prolonged if the contents of the will don’t provide you with the expected outcome. In this case, your first step should be to contact a wills and estate lawyer who can give you the tools to take your claim higher.

It is important to note that each Australian state and territory has different laws regarding contesting a will and the process can be complex in some cases.

Here are three questions to ask yourself before contesting a will:

1) Am I eligible?

Before an estate claim can be made, you will need to ensure you are actually entitled to contest a will in the first place. Under the NSW Succession Act 2006, the following parties are eligible to challenge the contents of a will:

  • Wife or husband of the deceased
  • De facto partner of the deceased (including same sex partners)
  • Child of the deceased
  • Ex-wife or husband of the deceased
  • Grandchild who was fully or partly dependent on the deceased for their wellbeing
  • A person who was in a close personal relationship at the time of the death
  • Any person who was fully or partly dependent on the deceased, and lived at the same residence

2) Am I in time to challenge?

In most contested wills cases, the 12 month time limit to make a claim application is irrelevant, as the challenge comes as a direct response after the will reading.

However, if you have only learnt of the will’s contents or the death itself, this time limit becomes crucial. If you do miss the 12 month date, you are able to ask the court for an extension, but without a good reason is unlikely to have the claim accepted.

It is important to remember the 12 month limit can’t be shortened or extended on the sole opinion of the will’s executor or administrator.

3) Who should I consult?

For the best outcome possible, it is recommended you seek out experienced estate lawyers who have dealt with a wide range of similar circumstances and situations in the past.

With this in mind, an expert legal team can delve deep into the case and find key arguments that can help win your claim. For more information about contesting a will, contact the team at Gerard Malouf and Partners today.

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