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How to Challenge a Will - Probate Solicitor Australia

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How to Challenge a Will? There are many reasons why a potential beneficiary may want to find out how to challenge a will. What follows is a general guide only and should not be considered as a substitute for obtaining definitive information from a solicitor about contested wills and disputed probate. When someone dies, friends and relatives may be surprised and in many cases disappointed or distressed by the disposal of the assets of the deceased. The law in Australia regarding disposal of assets upon death is reasonably liberal subject to existing family and dependants legislation and there is almost unfettered choice about who can be a beneficiary and the amount they can receive. A potential beneficiary can only challenge a will by disputing or contesting probate, if it is invalid or if certain classes of people have not had proper financial provision made for them, when it would be equitable and reasonable to do so.

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Is the Will Valid?

The law sets out strict rules about the testator and how the document should be executed, that is how it should be witnessed and signed. Failure to comply with these regulations can result in a potential beneficiary starting legal action to challenge the will. If the formalities have not been dealt with properly, the document may be deemed to be invalid by a court of law, ensuring either that an earlier will takes precedence or in the case where there is no previous will, the rules of intestacy will determine the allocation of any assets. It is possible to challenge a will in a court of law if the legal requirements have not been satisfied :-

  • the person making the will must be aged over 18 years
  • the will must be made without undue influence from another person
  • the will must not be made under threat or duress
  • the person making the will must be of sound mind and fully understand its content
  • a challenge can be mounted if a later will is found
  • the witnesses must sign together in the presence of the person who made the will
  • a witness who is a beneficiary will lose any inheritance

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How to Challenge a Will

How to Challenge a Will? To challenge a will it is necessary to issue a summons a court of law. There are time limits to court procedures and qualified legal advice should be sought from a solicitor as soon as possible. Your lawyer will be able to take legal action including applications for caveats and injunctions that will prevent the estate from being distributed until the matter has been heard by a judge who will determine the issues. The application is started by submission of a detailed affidavit of facts sworn by the applicant. It is therefore essential that all potential claimants keep a full and detailed written record of all events pertinent to the claim to assist in presentation of the case. Legal action to challenge a will is, in common with all other court proceedings, won or lost on the quality of the evidence presented by the solicitor to the court.

In the event that any of the beneficiaries or potential beneficiaries wishes to contest the will or if they object to the appointment or behaviour of any executor or administrator, then a contested probate solicitor can make application for determination of the contentious issues to a court of law. Most legal action in a court of law which involves probate solicitors relates to either inadequate provision for dependants including spouses and children or challenges to the technical validity to the will by disinherited relatives who would benefit under either an earlier will or under the intestacy rules. In disputed matters a probate solicitor can issue a caveat in a court of law at an early stage to stay the matter in order to allow legal proceeding to be prepared and/or summons can be issued immediately claiming relief, usually resulting in either an emergency injunction or a trial to determine the validity of the will, make provision for appropriate individuals or to challenge and remove individual executors who have failed to discharge their legal duties.

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Caveats & Injunctions

Caveat - This is a document that a contested probate solicitor files in the court putting the court on notice that there may be an issue with regards to the issue of a grant of probate. Upon receiving an application to issue the grant of probate the court must warn the caveator, i.e the person who filed the request for a caveat, that the application is pending thereby allowing the caveator or their probate solicitor, to take any legal action that they may deem necessary to protect their own position.

Injunction - This is a court order that instructs an individual to do something or instructs an individual not to do something. An injunction can be dealt with on an emergency basis by a court of law in the absence of the party against whom the order is intended however in this case an interim injunction is granted with an early return to court to allow all parties the opportunity to attend the hearing and to facilitate their probate solicitors to make representations before a final order is made.

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Family & Dependants

This type of statute intrudes upon testamentary freedom and the testator’s right to leave assets to whomsoever they chose. Certain classes of potential beneficiaries may often challenge a will on the basis that they should have had adequate financial provision made for their well-being. Any eligible person can challenge a will but there are time limits, subject to the courts discretion. Those who may apply usually include close relatives, cohabitees and dependants. Financial provision may often be made for maintenance, education or advancement in life. It is worth noting that there are provisions in force to deal with gifts made by the testator prior to death with the intention of defeating the rights of a bone fide applicant.

It is usually possible for spouses, some de facto partners, some family members and genuine dependants to make an application to a court of law for financial provision from the estate of the deceased where none has been made. In determining the outcome of a disputed legal case, the judge will consider:-

  • whether redistribution would affect other beneficiaries
  • type and value of property involved
  • ages of potential and existing dependants
  • relationship of the deceased to potential and existing dependants
  • needs of potential and existing dependants
  • personal relationship between the applicant and the deceased

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No Will & Intestacy

It often happens that an individual with assets dies leaving no valid will. In this case legislation determines how assets owned by the deceased at the time of death should be distributed subject to the over-riding interest of provision for dependants. The priority of those entitled to benefit is determined by the intestacy rules which have a strict order of potential beneficiaries. Where there is no valid will, application for the grant of letters of administration is made by a probate solicitor on behalf of one or more of the potential beneficiaries who must distribute the assets in accordance with the intestacy rules.

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Lost or Destroyed Wills

This can be a very thorny topic, causing serious rifts within families, which results in many cases of legal action to challenge a will. It is often the case that a disenfranchised relative, who is first on the scheme after death, destroys a properly executed will, hoping that an earlier will or the intestacy rules will provide them with an inheritance. The basic rules are that a will that has been lost or accidentally destroyed or damaged is still valid and it may be possible to rely on a copy following application to a court of law. If on the other hand the testator has deliberately destroyed the document with the intention of revoking it by destruction then it is of no further consequence even though there may be copies in existence. The effect of destruction by a testator with the intention of revocation is that a previous will may then take precedence or where there is none, the intestacy rules may thereafter dictate the allocation of assets and where there are no qualifying relatives under the intestacy rules, the entire estate may be forfeit to the state.

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Grant of Probate

A probate solicitor obtains a grant of probate in order to give formal authority to one or more people to legally deal with the assets of a deceased person. The authority is derived from the content of a will which usually contains provisions that name and authorise those who may collect in and subsequently distribute the assets in accordance with the terms of the will, known as executors. A probate solicitor obtains a grant of probate by making application to the court, which after consideration of the content of the will, issue a document known as a grant of probate. In the event that there is no will or where there is a will with no one specifically authorised to deal with the assets then the probate solicitor will apply to the court for the issue of ‘letters of administration’ which authorises an individual, usually with an interest in the assets of the deceased to act in a similar way to an executor.

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Letters of Administration

If there is no will or where there is a will but there is no appointment of an executor under the will, then any of those people having an interest in the assets of the deceased may make an application to the court to be granted authority to deal with the estate such authority being referred to as the grant of letters of administration. The duties of an administrator acting with authority derived from the grant of letters of administration are almost identical to those of an executor whose powers derive directly from a valid will. In distributing the assets of the deceased where there is no will the administrator must follow legally binding regulations known as the intestacy rules. Our contested probate solicitors will give full detailed advice in all cases relating to disputed issues associated with intestacy.

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Executors & Administrators Duties

In general terms the responsibility and duty of both an executor and an administrator is to take charge of the deceased’s assets and property, pay funeral and administration expenses, settle all debts including any tax that is due and distribute the assets in accordance with the will or in the case where there is no will to follow the intestacy rules. Funeral expenses are paid first and thereafter an order of priority is set by law for the discharge of any other liabilities. In the event that a beneficiary has any doubts about the integrity or behaviour of an executor or administrator a contested probate solicitor can make an application to the court for removal and replacement in addition to immediate injunctive relief.

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