Contesting a Will

The most common grounds for contesting a Will include:

1. Family Provision Claim: if you are an eligible family member and have not been left adequate and proper provision under the Will.
2. Lack of testamentary capacity: The person who made the Will was not of sound mind at the time the Will was made.
3. Undue influence: The Will was made as a result of pressure or manipulation from another person.
4. Fraud: The Will is a forgery or was created under fraudulent circumstances where theWillmaker didn’t know the contents of the Will.
5. Improper form or execution: The Will was not in writing or was not executed according to legal requirements, such as having 2 witnesses.
6. Uncertainty or ambiguities: The Will contains ambiguous or unclear terms that make its interpretation questionable and uncertain.

1. Initial assessment: Consult with an estate litigation lawyer to review the matter and evaluate the merits of your claim.
2. Gather evidence: Collect all relevant documents, and other evidence that supports your claim.
3. Attempt to Negotiate: Sometimes it is valuable to seek to negotiate a settlement out of court.
4. File a Claim: If negotiations fail then file your claim in the court, within time limits.
5. Mediation: The court will often order parties in estate disputes in Western Australia into  a formal mediation process to attempt to resolve the claim.
6. Litigation: The parties will engage in discovery, prepare witness statements and generally prepare their evidence.
7. Trial: If not settled by negotiation or mediation along the way, the claim proceeds to a final hearing where a judge will decide the merits of the claim. 

 
READ MORE on how to contest a Will. 

The type of evidence varies depending on the grounds for the contest but may include:

1. Medical records showing a lack of mental capacity.
2. Witnesses who can testify about undue influence or fraud.
3. Expert opinions on handwriting to prove or disprove a forgery.
4. Financial documentation or correspondence that can support your claim.

While court proceedings are often inevitable in Will contests, some matters may be settled through alternative dispute resolution methods like negotiation or mediation. These options are sometimes less costly and time-consuming but do require all parties to be willing to negotiate.

• Financial Costs: Legal fees, court costs, and other expenses can add up quickly.
• Emotional Toll: The process can be emotionally draining and strain family relationships.
• No Guarantee of Success: There’s always a risk that the court might uphold the original Will and dismiss your claim.

While it’s technically possible to contest a Will without a lawyer, the legal process is complicated and fraught with pitfalls. The different states and territories in Australia also have different laws around deceased estates..

An experienced lawyer can help you navigate the complexities, improve your chances of success, and possibly even help you avoid court altogether.

While you can’t entirely prevent Will challenges, proactive steps can significantly reduce the risks. 

An open dialogue with beneficiaries about your estate planning decisions can clarify intentions and minimise future disputes. It’s advisable to update your Will every three years or after major life or financial events, as outdated Wills are more vulnerable to challenges.

To safeguard your estate further, consider strategic asset restructuring and consult us about non-estate assets like superannuation. Employing Trusts can also shield assets from challenges. While some strategies may have tax implications, the right legal advice can fortify your estate against challenges, ensuring a smoother transition of your wealth and legacy.

While no Will is entirely ‘watertight,’ we can draft one that minimises the likelihood of challenges by tailoring it to your unique circumstances, with the benefit of our experience. 

We guide you in making well-considered provisions for potential claimants, especially if you intend to exclude someone who might contest the Will. We often recommend detailed reasoning and even separate statutory declarations to better protect your estate plan. 

Regularly updating your Will, especially after significant life events, enhances its resilience against challenges. Open conversations with beneficiaries can preempt disputes, helping to find a middle ground that satisfies all parties. Expert legal advice is crucial, given the complexities of modern estate law. We specialise in Wills and estates, and have a wealth of experience in these disputes, ensuring that your Will is as strong and up-to-date as possible.