When dealing with the complexities of a deceased estate, it’s crucial to understand the differences between challenging and contesting a will. While these terms are often used interchangeably, they refer to different legal actions that can benefit different claimants depending on their results. Here’s a clear explanation of each process and their respective implications:
Challenging a Will
Challenging a will involves questioning its validity by arguing that the will itself is not legally binding. Common grounds for challenging a will include:
- Lack of Testamentary Capacity: The testator (the person who made the will) was not of sound mind or did not understand the nature and effect of the will at the time it was made,
- Influenced or Coerced: The testator was pressured or coerced into making the will or including certain provisions for specific beneficiaries,
- Fraud or Forgery: The will was forged, or the testator was deceived into signing it,
- Non-compliance with Legal Formalities: The will does not meet the legal requirements of being written, signed, and witnessed as mandated by Australian law.
If a will is successfully challenged and found invalid, it may be disregarded by the Court. Consequently, the estate may be distributed according to a previous valid will or, if no other valid will exists, in accordance with intestacy laws.
Contesting a Will
Contesting a will, on the other hand, does not question its validity but rather seeks a different distribution of the estate. This typically occurs when an eligible person believes they have not been adequately provided for under the terms of the will. Grounds for contesting a will include:
- Inadequate Provision: The will does not make adequate provision for an eligible person, such as a spouse, child, or dependent.
- Family Provision Claims: Under the Family Provision Act, certain individuals may claim that they have not received a fair share of the estate, despite the will’s terms.
To contest a will, the claimant must demonstrate their eligibility and the inadequacy of their provision under the will. The court will consider factors such as the relationship between the claimant and the deceased, the claimant’s financial needs, and the size and nature of the estate.
Understanding the difference between challenging and contesting a will is essential for anyone involved in the administration of an estate or who believes they have been unfairly treated in a will. Both processes require careful legal consideration and often the assistance of experienced legal professionals. To discuss your case please contact the August and Claire Lawyers team today on 02 4944 2008.