What is the best process for contesting an estate plan

The death of a loved one is a challenging time. Finding out your loved one’s will wasn’t up to date, or that their will instructions are oddly uncharacteristic of them only adds to the emotional toll. During this stressful time, it can be beneficial to seek the advice of an estate lawyer who can handle an estate dispute if there are disagreements around the deceased’s will.

What happens to the deceased’s estate

It’s important to be aware that according to the Law of Intestacy; a person without a will has their assets automatically passed to their spouse or next of kin. However, complications arise if the deceased had a former spouse or spouses, and those relationships have not formally finalised.

If the deceased has a will, an estate executor will carry out their wishes in a way that’s consistent with the law. The executor you choose should be someone you trust and knows you and what your wishes are.  Whomever you choose as your executor, they will need to obtain a Grant of Probate before they can legally handle the disposal of assets and liabilities according to the will.

Disputing a will is a messy thing. There’s a risk it will do irreparable damage to certain family relationships. Before you decide to go through it, here are some things to consider.

Some things to consider before contesting a will:

  1. Are you an eligible person?
  2. Are you within the time limit?
  3. What state is the deceased located in?
  4. Have you been unfairly provided for, or not provided for at all?
  5. Are you in a position where you are relying on the financial provisions gained from the will?
  6. Do you think the deceased lacked the mental agency to draft their will fairly?
  7. Do you think the deceased was influenced by another party while drafting their will?
  8. Do you have reason to think the deceased’s will was forged by another party?

Estates disputes between family

The death of a loved one brings people together and helps them come to terms with the ephemeral nature of life. It can also open up old wounds between close relatives and family members.

Before you decide to contest a will, it’s important to know that the last will and testament is a legal document. Just because you or someone else decides to contest it, doesn’t guarantee it will be overturned. Under the Succession Act, there are various classes that are known as Eligible people including. Spouses, children or beneficiaries mentioned in the will or previous wills are eligible to contest a will and others with some type of dependency on the deceased.

Disputing a will in court

An eligible person may contest a will within a 12-months from the date of death. In exceptional circumstances, the court may grant further time.

The effects of divorce on a will

There are typically two factors which the court takes into account regarding the effects of divorce on a will.

  1. The divorce disentitles the former spouse from receiving any inheritance under the will of the deceased.
  2. The former spouse did not receive adequate provisions in the will of the deceased.

Disputing a will is often complicated and messy. Having a trustworthy, experienced and competent estate lawyer will alleviate much of the stress and burden.

Taylor & Scott’s offer to you in wills and estate matters

Our team of experts in the Estate team are happy to review a claim that you may have if you feel that you have been unfairly treated in a will.

Please feel free to contact our Estate team by completing the contact form on this page. Email us at info@tayscott.com.au or phone us on 1800 600 664. Our team of experts in Estate disputes will do everything they can to fight for your rights with respect to your claim.

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