Contesting a Will
Contesting a Will can be an emotionally and legally complex process. If you believe that a Will does not reflect the true wishes of a loved one, you feel like you have not been left what you should have been, or if there are concerns about its legitimacy or interpretation, our skilled estates lawyers can guide you through every step of the legal journey.
Our job is to help square the ledger – to right the wrongs sometimes left behind when someone has died.
We act both for those who have been wrongfully left out of Wills and also for those who need to protect their inheritance from wrongful attacks.
How we can help you
- Advice on who can contest and on what grounds
- How best to contest the Will or estate
- The right strategies when it comes to contesting
- A clear outline of the process
- Realistic expectations on the scenarios and outcomes
- Tailored advice given your unique circumstances
- Guidance and representation throughout the the whole process whether it’s settled in or out of court
Our team is here to guide you. Take the first steps towards resolving your legal matter in a smart and efficient way with Solomon Hollett Lawyers.
Looking to contest a Will or looking to defend a challenge?
Contesting a Will is a complex and delicate process, and the right representation is essential. If you feel you’ve been left out of a Will or have been left with an unfair portion of an inheritance, we may be able to help. Our team of highly experienced estate litigation lawyers can provide legal advice and support to ensure you get the best possible outcome.
Personalised legal solutions
Comprehensive eligibility insights
Know exactly where you stand, so you can make informed and cost-effective decisions from the start.
Smart strategic planning
Transparent roadmap
Grounded outcome forecasts
End-to-end support and representation
Our client testimonials
From individuals to families, from startups to large corporates, professional groups to charitable foundations – we’ve stood beside a diverse range of clients helping them best navigate their legal journeys. Here’s what just some of them have to say.
Discover the Solomon
Hollett difference
Personalised legal solutions
Comprehensive legal knowledge
Client-centric approach
Proven track record
Accessible and timely legal services
Transparent and up front
Estate disputes and how we can help
Just as every family is unique, so too is every claim, every beneficiary and every challenge to a Will or an estate. We tailor our strategies to your particular needs based on our superior experience in both bringing a claim and defending against Will challenges. A simple ‘cookie-cutter’ approach to these matters does not stack up, and we use our insight, deep knowledge and sensitivity to pursue the best and most cost effective outcomes for you.
Frequently
asked
questions
Can’t find what you are looking for?
What does it mean to contest a Will?
Contesting a Will can involve a challenge to the validity of the Will itself so that it is struck out by a court and any previous Will applies, a challenge to the interpretation of particular terms of the Will, or a simply a challenge to the distribution of the estate under the Will.
Who is eligible to contest a Will?
Typically, you must be an “interested party” to contest a Will. This generally means you would be a beneficiary under an earlier Will, or financially affected by the Will’s distribution or lack thereof. Examples include spouses, including de facto spouses, children, in some cases grandchildren and sometimes even creditors.
What are the most common grounds for contesting a Will?
The most common grounds for contesting a Will include:
- Family Provision Claim: if you are an eligible family member and have not been left adequate and proper provision under the Will.
- Lack of testamentary capacity: The person who made the Will was not of sound mind at the time the Will was made.
- Undue influence: The Will was made as a result of pressure or manipulation from another person.
- Fraud: The Will is a forgery or was created under fraudulent circumstances where theWillmaker didn’t know the contents of the Will.
- Improper form or execution: The Will was not in writing or was not executed according to legal requirements, such as having 2 witnesses.
- Uncertainty or ambiguities: The Will contains ambiguous or unclear terms that make its interpretation questionable and uncertain.
What is the general process of contesting a Will in Western Australia?
- Initial assessment: Consult with an estate litigation lawyer to review the matter and evaluate the merits of your claim.
- Gather evidence: Collect all relevant documents, and other evidence that supports your claim.
- Attempt to Negotiate: Sometimes it is valuable to seek to negotiate a settlement out of court.
- File a Claim: If negotiations fail then file your claim in the court, within time limits.
- Mediation: The court will often order parties in estate disputes in Western Australia into a formal mediation process to attempt to resolve the claim.
- Litigation: The parties will engage in discovery, prepare witness statements and generally prepare their evidence.
- 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.
What kind of evidence is needed to contest a Will?
The type of evidence varies depending on the grounds for the contest but may include:
- Medical records showing a lack of mental capacity.
- Witnesses who can testify about undue influence or fraud.
- Expert opinions on handwriting to prove or disprove a forgery.
- Financial documentation or correspondence that can support your claim.
Can I contest a Will without going to court?
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.
What risks are involved in contesting a Will?
- 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.
Do I need a lawyer to contest a Will?
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.
How can I avoid my Will being challenged?
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.
Can my Will be watertight?
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.
Book your free 15 min consultation
Discussing your situation over the phone is often the best way to start, and we’re pleased to offer all new and existing clients a free 15-minute phone consultation for every commercial dispute matter. This is a great opportunity to let us know more about the assistance you’re looking for, clarify your situation, and walk you through how best we can help and what’s involved. Whether you’re dealing with a contract disagreement, a partnership conflict, or any other commercial dispute, our experienced team is here to provide the guidance and support you need.
Consult with our experienced lawyers
Discussing your situation over the phone is often the best way to start, and we’re pleased to offer all new and existing clients a phone consultation for every new commercial law matter. This is a great opportunity to let us know more about the assistance you’re looking for, clarify your situation, and walk you through how best we can help and what’s involved. Whether you need support with contracts, leasing, business transactions, or dispute resolution, our experienced commercial lawyers in Perth are here to guide you