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3 questions to ask yourself before contesting a will

People choose to contest a will for a number of reasons. In most cases, they feel as though they have been unfairly provided for in the document, leading them to question its legal validity and whether the person had full mental capacity when they signed it.

However, before deciding if it is a good idea to move ahead with contesting a will, it is essential to ask yourself a few key questions.

1. What is your reason for contesting the will?

The first issue you will need to think about is why you feel the need to contest a will. Generally speaking, there are five key reasons why you might decide to do this:

• You have not been provided for in the will
• The will is not valid
• The individual died intestate
• Provisions made for you in the will were not sufficient
• The administrator of the will did not fulfil their duties properly

It pays to be clear in your mind where the problem lies. This will help ensure the lawyer acting on your behalf knows how to proceed with your case and hopefully deliver the result you had hoped for.

2. Am I entitled to contest the will?

Remember that not everybody has the right to contest a will. In New South Wales, you have to be on a list of eligible persons in order to pursue this type of legal action.

The full list can be found under Section 57 of the Succession Act 2006 (NSW), but generally speaking the following parties are able to put forward a claim:

• The spouse of the deceased at the time of their death
• Their child
• Their former spouse
• A person who was living in a de-facto relationship with the deceased at the time of death;
• Someone who was either wholly or partly dependent on the deceased at one particular time
• Their grandchild of the deceased
• A member of their household
• A person who lived in a close personal relationship, such as someone who lived in the same property and provided care services

If you fall into one of these categories, then there could be grounds for contesting a will.

3. Was the person in the right mental capacity to write the will?

Many people choose to dispute wills because they believe their loved one was not in the right state of mind to have been putting together such an important legal document.

Although this is difficult to prove, gaining medical records and other files on their health could be the key to unlocking the truth. If this is an avenue you want to pursue, it is worthwhile making sure this type of evidence will be accessible.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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