When someone passes it can be a deeply emotional time for their loved ones. It can become even more stressful when you’ve been excluded from a Will that you believe you rightfully have a claim on. There are many reasons why a person may not have been provided for in a Will and the law can be quite complex when ensuring that adequate provision has been made for people who’ve been left behind.
Shine Lawyers’ Wills and Estate expert Tracey Ryan says there are a number of things to consider before contesting a Will. Check the list below to see if you’re ready to move forward.
- What is the date of death?
There are strict timelimits on when you can claim, so this is the first step in establishing if you’re able to make a claim.
- Are you eligible to contest the Will?
How is the deceased related to you? Is the deceased your spouse, parent or were you financially dependent upon them? Then yes, you will most likely be eligible. If it’s your long-lost cousin who you haven’t seen in more than 20 years it’s very remote that you will be eligible to challenge to the Will.
- What does the Will say?
Have you seen the Will? It may already have provisions for you. Or you may find yourself in the uncomfortable position of challenging a Will that has left everything to your child or a sibling you are fond of.
- What is in the estate?
If the estate has mainly household chattels and $20,000 in cash it will not be worthwhile you challenging the will. Challenging a small estate is best avoided. If the estate is valued over $500,000 it is definitely worth investigating.
- What do you have?
If you are wealthy, or even financially secure, your claim may not be a good one. If you have little and struggle financially and you can demonstrate need (financially or health-wise) your claim is often likely to be stronger.
- What is your relationship with the deceased like?
Those who have had good relationships have a stronger claim than those, for example, who haven’t seen the deceased for a long time without adequate explanation of why.
- Who else might contest and what is their claim likely to look like?
All eligible people will be considered. Are there 10 other people in the same situation as yours who are likely to contest and what effect may that have on the amount you are to receive? Or are you the only one with a claim? This can have a significant effect on what you may receive from the estate.
- Are you ready for any aspect of your life (particularly things that you may not be particularly proud of) being raised?
Often matters that might make you feel uncomfortable come up and you need to be emotionally robust and ready for this.
- Do you have time?
While lawyers do the heavy lifting, you need to dedicate time to providing information, collating documents, participating in mediations and, worst-case scenario, going to court. In most instances, matters will resolve at mediation but this does not always happen and you must be prepared to go to court from the beginning, as you never really know where the matter will end.
- Have you thought about the effect it will have on your family relationships?
When most people contest a Will there is little left of family relationships and there is nothing to lose, but that is not always the case. You may ‘be against’ a family member you are very fond of and you need to consider the long-term effect of your challenge on these relationships.
Written by Tracey Ryan. Last modified: July 31, 2019.