Wills & Probate - making or contesting a Will

Preparation and safekeeping of Wills and Powers of Attorney

At Stringer Clark, we can look after all of your Will and probate needs. We believe that every person should have a Will. Early preparation of your Will minimises tax liabilities and expenses associated with the administration of your estate and at Stringer Clark we can hold your Will for safekeeping and update it when required.

Our experienced team continues to administer deceased estates ensuring each client's wishes are given legal and practical effect.

Challenging the issuing of Probate

You may contest or dispute a Will if you believe it to be false or invalid. A Will may be invalid for a variety of reasons such as:

  • there is a later Will;
  • the Will was not properly executed;
  • the Deceased lacked capacity when the Will was signed; or
  • the Deceased was pressured by a third party to sign the Will.

All these circumstances may offer grounds for challenging the Court’s granting of Probate (in effect, a Court Order acknowledging the authenticity of a Will and enabling the Executor to administer the Estate). Probate is sought by the Executor of the Will following the death of the Deceased. You are entitled to challenge the issuing of Probate if any of the grounds listed above can be proved.

Contesting or fighting a Will

Secondly, once Probate is granted, a Will may be challenged if a person believes they have been treated unfairly or inadequately, or that they may have missed out entirely on part of the inheritance. A Will may be successfully challenged if the person (“the Claimant”) can establish that the Deceased had a responsibility to make provision (or better provision) for them.

Should you wish to contest a Will, you should be aware of what the Court will consider as relevant factors, the implications of challenging a Will, and the process itself.

Deadline: Remember – a valid Will may only be contested for up to six months after the granting of Probate.

Where there is no Will

If a person dies without a Will, their Estate is distributed according to a formula set out in the Administration and Probate Act. This formula may be inappropriate in some circumstances and can be challenged if the formula does not make proper provision for a person for whom the Deceased had a responsibility.

What the Court considers

The Court must consider any of the following factors when considering a claim on a Will:

  • Any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;
  • The obligations or responsibilities of the deceased person to the applicant and other possible beneficiaries of the estate;
  • The size and nature of the estate of the deceased;
  • Any financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant, both now and into the future;
  • Possible physical, mental or intellectual disability of the applicant;
  • The age of the applicant;
  • Contributions that the applicant may have made in building up the estate; and
  • Whether the applicant was being maintained by the deceased person before that person's death.

The process

While cases may go to Court, disputed Wills are often resolved through mediation which involves the parties in dispute and their lawyers.

What should I do if I am considering contesting a Will?

Contact us at an office near you. You should do this sooner rather than later. You will then understand thoroughly the chances of mounting a successful challenge, and be counselled on the possible consequences of a challenge.

Remember, many people consider themselves to be experts on Wills and fighting Wills. Most of them are wrong.

It doesn’t cost anything to give us a call and set you straight.

Call 1800 641 743 or find us at an office near you for advice on any matter on Wills & Probate law.

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