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What reasons are there for challenging a will?

Challenging a will is a difficult decision to make, but there may be no other option if certain situations arise that suggest the estate planning process has gone awry.

There are a number of potential reasons why an inheritance dispute may occur, many of which could result in changes to how the deceased’s assets are distributed.

Here are some of the most common causes of challenging a will:

1/ The will is grossly unfair

You could have a solid case against a will if the document can be deemed grossly unfair, which is typically decided based on various factors.

For example, if you are an eligible beneficiary under NSW legislation – such as a spouse or child of the deceased – yet you have been left entirely out of the will, you could claim it’s grossly unfair.

This may also be true for dependants who have not been adequately catered for, which is why many people launch family provision claims in order to rectify the situation.

2/ The deceased lacked testamentary capacity

For a will to be considered valid, the individual needs to have testamentary capacity. Essentially, this means they must fully understand the ramificationsof writing a will and the inherent obligations held therein.

When estate planning, the will writer should be aware of the value of their estate, who needs to be included in the document and how they want their assets to be distributed.

There are reasons why someone may lack testamentary capacity, including mental illness, senility, learning disabilities and being under the influence of drugs or alcohol.

3/ There are suspicions of undue influence

If you suspect the deceased was unduly influenced during the writing of a will, there is often good cause to pursue legal action to challenge the document.

In some cases, there may be suggestions of duress, in which the testator has been forced to include a beneficiary in the will, potentially with the threat of physical violence.

Will fraud is also a possibility. This can occur in several ways, including the misrepresentation of facts to the writer of a will that causes them to distribute their estate in a manner they would otherwise not have done.

4/ The will is a forgery

A will can be invalidated if it’s proven to be a forgery, although the onus of proof is on the claimant to show this is the case.

If another will can’t be found, the laws of intestacy apply when forgeries are proven. In other words, the deceased’s estate is divided according to a set formula.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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