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How to Contest a Will after Probate in Australia

When someone passes away, the Executor of their Will must go through steps to start carrying out its terms. However, sometimes, the Will may be outdated and not include someone who should benefit from the person's estate. If this is the case, the Executor can contest the Will.

In this guide, we'll discuss how to contest a Will after Probate and things to consider when going through the process.

What is a Grant of Probate?

The courts issue a grant of Probate to legally recognise the Executor of a Will and their authority to handle the estate of someone who passed away. Probate is needed before the Executor can take control of the person's estate. The grant of Probate validates the Will under the Supreme Court.

Can you contest a Will after Probate in Australia?

In Australia, you can contest a Will after the grant of Probate is issued. However, the Executor must move quickly with contesting because it's almost impossible once the assets are gone.

There are different conditions to contesting a Will depending on the state or territory. Therefore, to successfully contest a Will after Probate, you will need legal advice on what applies to your situation and follow it carefully.

What are the reasons to contest a Will after Probate?

There are several reasons why someone might choose to contest a Will after Probate. In addition to family provision claims, where you can prove an eligible relationship to the Will maker, here are some other factors the court will consider when reviewing your claim:

  • The quality of your relationship with the Will maker.
  • How do your financial needs compare to other beneficiaries?
  • The size of the estate.
  • If you contributed to the Will maker's finances, property or estate during their lifetime.
  • If you require support due to a physical or mental disability.

Depending on the situation, you can contest a Will if you should reasonably expect to benefit from the Will maker's estate but have been left out or treated unreasonably.

When can you contest a Will after Probate?

If you're legally eligible and have found grounds for a claim, states and territories have different time frames to file the claim. For example, some states and territories measure it from the date of death, and others from when the Executor receives a grant of Probate.

It's essential to know the time limit on contesting a Will after Probate and get advice on what limitation applies in your particular state or territory. It can be challenging to contest a Will after the time limit expires. If it is after the time limit, the court may only consider the claim in rare circumstances.

Who can contest a Will?

Those who can contest a Will, need to be "eligible". To be eligible, you need to have a close relationship with the Will maker will usually need to be one of the following:

  • Spouse
  • Child or dependant
  • Grandchild
  • Parent
  • De Facto partner

It's also possible that you can be someone who feels they have a rightful claim because of the support or companionship you provided to the Will maker during their life. However, some relationships have a higher priority than others when contesting a Will.

For example, a spouse will have priority over children, and a Will maker's younger children may have priority over adult children or step-children. While these cover the most common relationships, each state and territory has subtle differences in defining who is eligible to contest a Will.

Final Thoughts

Choosing to contest a Will after Probate must be done quickly and efficiently to ensure that there is no harm done to friends, family and beneficiaries of the estate. Contesting a Will varies across Australia, so it's always best to understand what rules apply within your state or territory. If you're unsure whether you can legally contest a Will, seek professional legal advice quickly.

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.

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