Contesting a Will can be a difficult and stressful process. Especially when you are grieving the loss of a loved one. However, if you feel you believe that the provisions of the will are unfair or invalid you may contact a lawyer and discuss your options.
An expert team of estate litigation lawyers will be able to best help you. However, if you are looking for a brief overview and understanding of the Will Contesting process, read further.
What does ‘Contesting a Will’ mean?
A will contest is a formal objection to the validity of a will, based on the contention that will does not reflect the intent of the testator (whomever made the will) or is otherwise invalid.
Reasons for Contesting a Will
There are only a few limited reasons for Contesting a Will. Most cases are dismissed early on. Therefore, finding a reliable and trustworthy lawyer that can assess the suitability of your case can save you a lot of time, money and stress.
Testator family maintenance claims
If you, or another dependent, have been left out of the will, you may make a claim to request larger share of the inheritance. What constitutes a reasonable relationship between the an individual and the deceased will differ from state to state.
Lack of testamentary capacity claims
If the testator was in limited capacity at the time – such as suffering from illness – it could be argued that they did not sign the will in a state of sound mind.
Undue influence claims
Beneficiaries of an earlier will have the right challenge a more recent will if they believe the deceased was ‘unduly influenced’ by another person into signing a will that did not reflect their true intentions.
Breach of trust claims
This claim is made in the case that the Executor is not carrying out the wishes of the deceased. The beneficiary can also seek financial compensation if they suffer a loss.
What should I expect from the process?
Contesting a Will can be an arduous and mentally stressful process. Although each case differs depending on individual circumstances, the procedure itself is fairly routine.
Step #1: Negotiation
As is the case with most cases, they do not even have to go to court. Negotiation is the best place to try and reach an agreement. This step is fairly uncomplicated. Both parties are brought together with a negotiator present and attempt to reach a favourable outcome.
Step #2: Mediation
Mediation is a step above Negotiation, and is often for parties that cannot reconcile their difference in the presence of Negotiator. Similar to a Mediator, the Negotiator is present for the discussions; however, a Mediator has more control over the discussion and can help posit favourable solutions to both parties.
It is important to consider that over 90% of cases are settled at or before the Mediation phase. The parties involved are not required to go to Court if a settlement is reached at this phase.
The Supreme Court has the power to force two parties to participate in Mediation prior to a trial.
Step #3: Arbitration
Different to Negotiation and Mediation, you could opt for Arbitration. Arbitration involves an Arbitrator hearing both sides of an argument and reaching a legally binding ruling with their own authority.
Step #4: Litigation
If all other options have been exhausted, then you will need to apply to the Court. The application should be made as soon as possible after the death of the testator, and before the deceased estate has been distributed amongst the beneficiaries of the will.
Time periods for Contesting a Will depend on which state you live in. A good lawyer should act as openly as possible and help to find a resolution.
Contesting a Will is by no means a decision to take lightly. Before initiating a claim, make sure to look at your reasons and the situation carefully. Contact reliable estate litigation lawyers who will help you assess your case.
Do not rush the process; take your time to look at all your options. Consider Negotiation and Mediation before pushing for Litigation. Taking your time is crucial and maintaining a good lifestyle and healthy habits during such as a stressful period is recommended for your mental wellbeing.
For more information on Contesting a Will, try reading this blog to find out more. If you are in Melbourne and interested in Contesting a Will visit the www.willcontesting.com.au website to find out more about Hentys Lawyers and their high quality no win no fee estate litigation services.