Is there a difference between 'challenging' and 'contesting' a will?

Published 26 Oct 2017

Author: Garbis Kolokossian

You may not think there's much of a difference between 'challenging' and 'contesting' a will - and, for the most part, you'd be right.

But some lawyers may draw a distinction between the two terms, so it's worth familiarising yourself with the types of inheritance dispute that you can pursue in NSW.

Many firms use 'challenge' and 'contest' interchangeably, which is why you should always ask your lawyer for an explanation if you're confused what service they are offering.

Contesting a will

Contesting a will may refer specifically to family provision claims. These disputes arise when someone feels they have not received adequate provisions from the deceased's estate.

Claimants may be existing beneficiaries who believe they didn't receive a large enough share of the available assets, or an individual who has been entirely left out of the will.

The Succession Act 2006 (NSW) states that family provision claimants must be eligible people, which include spouses, de-facto partners and children, as well as dependents under specific conditions.

A report from the University of Queensland and other academic institutions revealed that just over half of inheritance disputes that go before a judge in Australia are family provision claims.

Challenging a will

Some lawyers may describe disputes that question the validity of a will as 'challenges'. In other words, an individual believes there is a reason that the will should be disregarded as a representation of the deceased's final wishes.

This may be due to allegations that:

  • The will was signed improperly or without witnesses;
  • The testator lacked the testamentary capacity to write a will;
  • The will is forged; or
  • The testator faced undue influence and pressure to write or amend their will.

In cases where a challenge is successful, a previous will may be used or, if none can be found, the deceased's estate may be distributed according to intestacy rules.

Other inheritance disputes

There are other types of inheritance dispute that may not fall under either of these terms.

For example, you may feel that an executor is failing in their duties and should be removed from their role of administering an estate. Some wills are also difficult to decipher, leading executors and beneficiaries to get clarification from a judge.

Whatever type of inheritance dispute you are facing, please contact Gerard Malouf & Partners Will Dispute Lawyers to see if we can help. Our lawyers are experts in NSW succession legislation and we will ensure you have all the information you need to decide whether or not to pursue a claim.

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