What are the most important questions to ask yourself before contesting a will?

Published 28 Apr 2015

Author: David Cossalter

The death of a loved one is often an emotional time for friends and relatives, which can make contesting a will a very difficult decision to make. Nevertheless, it may be the only option if you believe you have not been adequately provided for from the deceased's estate.  

Before proceeding with contesting a will, here are some of the most important questions to consider. If you still feel you want to pursue a family provision claim after reading this article, please contact a contesting wills lawyer for more information.

1. Am I eligible?

This is arguably the most crucial element of a claim. People who are not eligible to contest a will are unlikely to succeed if their case reaches the courts.

Eligible persons include spouses, children and sometimes grandchildren. People who were dependant on the deceased can also claim in certain circumstances.

2. Is the will unfair?

While you may be unhappy with the way a loved one's assets were distributed following their death, this does not necessarily mean the will was unfair.

Seeking legal advice is usually the best way to ascertain the legitimacy of a will. However, if you are an eligible claimant and you've not been named as a beneficiary, you are likely to have a strong case.

3. Did the deceased have testamentary capacity?

It is important to challenge a will in situations where you feel the deceased was not of sound mind when making the decision to distribute their assets.

A lack of testamentary capacity could be due to mental illness, dementia or undue influence or pressure from someone set to benefit from the will.

4. What outcome do I want?

Contesting a will can be a complex and drawn-out process, so it's a good idea to consider your ideal outcome before you embark on a claim.

For example, settlements and mediation can be a better alternative than going to court, especially if you prefer a quick result.

5. What happens if I lose?

Not all will contests are successful, so it's important to hire a no-win, no-fee law firm to ensure you don't end up with a huge legal bill at the end of your case.

To minimise the chances of losing in the first place, get in touch with legal representation that has a good track record, specialises in contesting a will and is already established in your local area.

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