Facts to consider before contesting a will

Date: Feb 24, 2012

The whole purpose of estate planning activities is to produce a will and testament that accurately reflects the wishes of its author in regards to how their possessions are to be distributed in the event of their death.

In essence, these instructions could be viewed as the last form of influence - or even of communication - that an individual can have with their loved ones.

For these reasons, it is important to understand the legal measures used to gauge the validity of a will before it can be properly contested.

First of all, estate disputes can only be entered into by a select group of individuals determined by the relevant legislation.

In New South Wales, these people are typically related to the deceased either through a partnership or as a direct descendant - although there are considerations made for other parties.

These beneficiaries can be the spouse or de facto partner of the will's author, their child, a former partner, an individual who was dependent on their estate or a person who was considered to be a member of the household.

While in some cases the definitions are self-explanatory and require little in the way of corroboration, other elements may need to be proved to the court's satisfaction before an application to challenge the terms of a will is accepted.

Of course, if one of these relationships can be readily established, a claim is more likely to succeed than if there is doubt about its validity.

There are also several grounds on which a will can be contested - and knowing which one is right for a certain situation can be a great help when a case goes before the courts.

Most famously, the latest will created by the deceased is the one that is recognised by the legal system - should a more recent one come to light, all previous testaments are declared invalid.

A favourite of drama movies, the concern that a will has been tampered with in some way - or in some cases wholly fabricated - means that its contents can be called into question.

If there are concerns about how the estate planning document was signed or witnessed - or if there is a suspicion that the author was somehow pressured into the act - then these points can also be grounds for a will to be disputed.

The mental capacity of the deceased at the time of drafting away their possessions can also be a sticking point for some cases - so too can the contention that the individual did not understand the full meaning of a certain clause in the documentation they produced.

The interpretive nature of these legal points helps to highlight the importance of gaining sound advice and representation before embarking on an estate dispute.