A legal Will is important protection - both for your assets and for the people you care about and want to look after. However, there are some circumstances in which a Will may be contested in court if there are beneficiaries - or non-beneficiaries - who want to challenge the plans you’ve laid down.
While a Will created through Willed.com.au is entirely valid and legal, every Will can have grounds to be contested, depending on the beneficiaries, the assets and the circumstances, whether the Will was created by a team of lawyers or built using the Willed platform.
In some situations, a contested Will could be settled through mediation; in others, it could become a court case and may need to be resolved legally. Here’s what you need to know.
Who can contest my Will?
There are a range of people who may be allowed to contest your Will if they can prove a close personal relationship with the Will-maker.
- A spouse, ex-spouse or de-facto partner
- A child, whether biological or adopted
- A dependant
- A close relative or a part of the deceased’s household or family, including siblings, grandparents and grandchildren
- Anyone who can prove a close personal relationship with the deceased at the time of their death, for example - someone living with them and sharing their home
However, qualifying to be able to contest a Will doesn’t mean the challenge will be successful, and there are a range of factors that the courts will consider if someone does attempt to contest your own plans.
What are the grounds to contest your Will?
If your Will is contested, there are many factors and grounds that the Courts may consider.
Examples of these include:
Support and Provisions
Any provision you’ve made during your lifetime to the person contesting your Will, such as whether any financial support in the past, will be considered when determining whether the correct requirements should be or have been made.
The person’s financial needs and their financial wellbeing and circumstances will be a factor in determining the validity of their claim.
The Court may also review if the contestant has made a financial or monetary contribution to your estate during your lifetime, whether through gifts or providing ongoing support.
Health and wellbeing
Any disability, whether physical, intellectual or mental, that either yourself or the beneficiaries of your Will may have.
The Court may review the contester’s relationship with you, throughout your lifetime, the point at which you made your Will, and at the time of your death. This includes any obligations to the contestant that you might have or any promises that you might have made to them.
Can you stop your Will from being contested?
While it’s not possible in Australia to create a contest-proof Will, there are steps that you can take to make sure your plans are as solid as possible. Thinking carefully and clearly about who your beneficiaries will be and having frank and honest discussions with the people you trust can help to work out where the potential issues might arise - and solve them before they become a problem.
Writing your Will is still a critical part of planning for your future, even if there is the possibility of the document being contested. If you do not have a legal Will, the Courts will distribute your estate according to the laws of intestacy through a process called Letters of Administration. By writing a Will you ensure that your final wishes are clearly outlined which can help to avoid any confusion for your family and friends.
Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.