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Shine Lawyers | elderly man reviewing his last will and testament

How do I know if I have grounds to dispute a Will?

Shine Lawyers | Tracey Ryan

Written by:
Tracey Ryan
General Manager — Loss Recovery

When a loved one passes away it is a deeply emotional time. If you have been excluded from a Will that you believe you rightfully have a claim on, it can become even more stressful. Shine Lawyers’ Wills and Estate expert Tracey Ryan says there are several things to consider before you dispute a Will. To help you, Shine Lawyers has developed a simple checklist to support those in understanding if they have grounds to dispute a Will. Check the list below to see if you’re ready to move forward.

  1. What was the date of death, or the date that probate was granted?

There are strict time-limits on when you can claim, so this is the first step in establishing if you’re able to make a claim. In Victoria, time limits commence from the date of the grant of probate - this is different from NSW and Qld, which is from the date of death.

  1. Are you eligible to dispute 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 a very remote chance that you will be eligible to dispute the Will.

  1. What does the Will say?

Have you seen the Will? It may already have provision for you. Or you may find yourself in the uncomfortable position of disputing a Will that has left everything to your child or a sibling you are fond of.

  1. What is in the estate?

If the estate has mainly household chattels and $20,000 in cash it will not be worthwhile you disputing the Will. Challenging a small estate is best avoided. If the estate is valued over $500,000 it is worth investigating.

  1. 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.

  1. 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.

  1. 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.

  1. Are you ready for any aspect of your life (things that you may not be particularly proud of) being raised?

Often matters that might make you feel uncomfortable will be brought up and you need to be emotionally robust and ready for this.

  1. 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.

  1. Have you thought about the effect it will have on your family relationships?

When most people dispute 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.

No Win No Fee Will dispute services

If you have considered the above and ready to dispute a Will Shine Lawyers’ Wills and Estates team can help. Your lawyer will work to deliver practical solutions and ensure that you ultimately receive what you’re entitled to. Contact us today for an obligation-free consultation or to find out more about our No Win No Fee Will dispute service.

Written by Tracey Ryan. Last modified: October 1, 2020.

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