After the death of a family member or friend, the process of examining their Will can begin. In some cases, the Will in question may need to be contested to ensure that all parties associated with the deceased are dealt with fairly and honestly. Contesting a Will can occur due to several reasons such as contesting the validity of the Will, the potential removal of executors, missing beneficiaries or disputes over administration. At McNab McNab & Starke, we take pride in being the go-to firm for challenging a Will in Victoria and gathering the evidence needed to contest a Will. With decades of experience in the industry, you can trust that we will have a leading success rate of challenging a Will in Victoria.
Grounds for Contesting a Will
For a court to even consider your case, you must have sufficient grounds for contesting a Will. Some of the most common claims for contesting a Will are:
Lack of Capacity of the will-maker
If the will-maker was not in a healthy state of mind, or was not in a position to knowingly create a Will on their own, you may be able to argue that they had a lack of capacity.
Undue Influence
This claim is related to the will-maker being under undue influence from an individual or a group of people, forcing the will-maker to write the Will in a way in which you, as the contester, are unfairly left out of it, or left with less than you are entitled to.
Breach of Trust
If the executor of the Will is not doing their job fairly or properly, you can contest this and force them to have the responsibilities of the executor stripped and another appointed in their place.
How to Contest a Will
Challenging a Will in Victoria can seem like a complicated and arduous task, however, by following these steps, the task can seem less daunting.
- Ensure there is sufficient evidence available to contest the Will.
- The claimant should begin by engaging in negotiations between the relevant parties with the goal of reaching a solution out of court.
- If an agreement is not reached, evidence will be gathered and the claim will be outlined in an affidavit and a summons will be filed to the Court.
- Prior to a Court hearing, a mediation will be conducted, in order for the parties to further discuss the case and reach a potential agreement.
- If no agreement is reached, the case will go to Court and will be heard before a judge.
- The judge will determine, based on the evidence and legal submissions, whether the claimant is entitled to their desired outcome.
Other Aspects to Consider When Contesting a Will
Eligible Applicants
Only close relatives and dependants of the will-maker may contest a Will. Furthermore, they must be directly affected by the outcome of the Will if they wish to make a claim.
Time Frames
A claim must be made within 6 months of the date on which probate is granted.
Cost and Fees
You must take into account the costs of contesting a Will before you embark on this venture. At McNab McNab & Starke, we can advise you of expected legal and court fees.
For the best success rate of contesting a Will in Victoria, contact our expert team online today.