Challenging a will can be an arduous process, with a heavy burden of proof required before a will can be successfully set aside. However, if you have strong reason to believe the deceased was manipulated or coerced, or was not mentally capable at the time the will was written, you may wish to seek such proof so you can challenge the will.
If you choose to challenge a will, having a will dispute attorney on your side can help you as you lodge your claim and gather evidence to take to the Court. Our team of experienced inheritance claims lawyers can provide you with the expert legal advice and support needed to develop your case and successfully challenge a questionable will.
If you’re creating a list of important questions about challenging a will, take a break and review the following. It likely covers most or all of the things you want to know, and can help you determine if it’s time to call our firm for help. Challenging a will can be a complex process, and you need legal advice you can trust.
Why would I challenge a will?
Reasons for challenging a will can come from several quarters. You might have discovered that the will ignored the Succession Act and instead left the entire estate or a majority of it to a single person who is not as close to the deceased as you would expect.
If that person is also the executor of the will, you may have suspicions that your loved one was pressured in some way to change their will and make the lopsided bequeathment. It is not unheard of for people to manipulate and pressure an elderly person into changing their will and leaving them in control.
Warning signs could include being increasingly rejected by the deceased in the period before their death, or not being able to have access to them in their final days. If the executor has been dishonest or can be shown to have exerted undue influence over the deceased, you can apply to have them removed.
You might also consider challenging a will if the bequeathments seem erratic, especially if you know of mental illness or dementia being present before the deceased’s death. Challenging a will based on the testator’s mental capacity is difficult, but can be accomplished, especially if the deceased did not take the step of having a medical professional and attorney present to certify testamentary capacity at the time of the will signing.
Finally, you could challenge a will if you have reason to believe that the will is fraudulent or a forgery. This may entail getting professional help from a lawyer and doing forensic investigation to prove that fraud is being committed or that a forgery has been created. If the will was created without the knowledge or approval of the deceased, then obviously that is a will that should be challenged and the estate distributed as it should have been without interference from a nefarious third party.
Challenging a will can set things right again, allowing those who would have benefitted from a fair will to receive their inheritance. However, if you believe the will is valid but still disagree with its terms, feeling it did not make adequate provision for you as an eligible person, you may have another chance to dispute the will by contesting it.
Contesting or challenging a will
Contesting wills and challenging a will may seem like similar phrases but legally they have very different meanings when it comes to will and inheritance disputes. The main differences are as follows:
Challenging a will means that you believe it was written under undue duress or by someone not of sound mind, or that it was a fraud or forgery. It seeks to have the will declared wholly invalid and thrown out.
Once the invalid will is removed from probate, a previous will can be reinstated, or, if the deceased died otherwise intestate, the Court will assign distribution of the estate according to the Succession Act.
Contesting a will has more to do with the specific inheritances received by various beneficiaries. The will is assumed to reflect the wishes of the deceased, but the fairness of the aset distribution is brought into question. If the deceased had a moral obligation to one or more persons or made promises that weren’t kept in the will, you can contest it.
This typically consists of filing a family provision claim, detailing your financial status, proving you are an eligible person (usually a family member, but sometimes a person close to the family), and establishing your dependency on the deceased person.
A contested will can be settled through private negotiations with other beneficiaries and the executor, handled via third party mediation as demanded by the Court, or taken through Court proceedings to be decided if an agreement can’t be reached via the other two methods.
The challenge process
In order to successfully challenge a will, you’ll definitely need to do some prep work and line everything up to prove your case, whether you are claiming undue influence or diminished testamentary capacity, or claiming fraud or forgery has occurred.
You can challenge a will if you are a named beneficiary and you believe the will to be invalid. You can also challenge the will if you know you were a beneficiary in a previous will. Finally, if you would be an automatic ally qualifying beneficiary if the deceased had died intestate, you have standing to challenge the will.
You’ll need to be able to provide evidence that supports the reason that you are challenging the will.
If the deceased had full Testamentary Capacity, that means they maintained the ability to make a will while understanding the moral obligations they have to different family members or persons they made promises to.
How the deceased’s estate is distributed can impact family members and other dependents after the death of the willmaker. If succession planning was not done well in advance of any decrease in mental capacity, you may be able to prove the deceased was suffering from a mental incapacity such as dementia at the time they wrote their will, and successfully challenge it to have it removed from probate.
Be aware that elder law protects the rights of the aged to handle their own affairs, including making their will. Find out if an attorney and/or a medical professional attended the will signing. If so, it will be difficult for you to challenge the will on grounds of testamentary incapacity.
A person who makes or revises a will while under coercion or duress of another party is said to be motivated by undue influence. This can be the case if someone sees an elderly person and befriends them in order to manipulate them into changing their will. It can also be the work of someone who underhandedly sought to influence the willmaker to cut out original beneficiaries and make a new will leaving their estate to the interloper.
If the will unfairly leaves out those who would be entitled to a significant inheritance based on the Succession Act, and instead bequeaths their estate to a new acquaintance, an old friend, a family member, or a caretaker who has been spending a lot of time with them, it’s possible they were under undue influence. You may want to look for the following warning signs:
- A new will that was made suddenly and with no discussion with previous beneficiaries
- A new “domestic partner” who diligently worked to seclude the deceased and turn the testator against other people
- A caretaker who may have been using their position to threaten or coerce the deceased into writing them into the will
- An executor who benefits from the will far beyond what would have been expected, to the detriment of other beneficiaries
The challenge process can be started by filing a probate caveat to stop the will from being granted probate, or by bringing the matter to the Supreme Court. You may be urged to file a testator family maintenance claim. The will challenge process can vary slightly from territory to state, and having the help of a reputable wills and estate disputes solicitor can help you follow the correct steps and procedures and gather the evidence required.
Why Gerard Malouf & Partners?
Working with a skilled solicitor can help prevent you from making missteps when challenging a will. Gerard Malouf & Partners can provide you with legal advice and representation from a team of qualified estate dispute attorneys, as well as the resources needed to track down the evidence you need to successfully make your case in Court.
You need experienced legal counsel on your side to keep you from potentially missing a deadline, incorrectly filling out one of the many forms required, or failing to collect the right kind of evidence. It can be hard enough just dealing with urgent matters in the wake of a death. We’re here to handle the legal side of things, and have successfully challenged wills and won big settlements for our clients.
Seeking our help can make a significant difference in the outcome of your claim. Your solicitor from Gerarad Malouf & Partners won’t cost you anything up front. At GMP we have a strict no-win, no-fee case handling policy, so if for some reason your attempt to challenge a will fails, you won’t owe us legal fees.
When you do get your inheritance from the estate of the deceased person, your legal costs, including costly court fees, can come right out of those funds, and you can walk away with a tidy sum designed to provide you with the maintenance to which you are entitled. Contact us for no-obligation legal advice about your claim.