How to dispute a will

Date: Mar 27, 2013

A bereavement is often a traumatising time for family and friends of the deceased, which can make it difficult for people who want to dispute a will when they feel they have been left out or not properly provided for.

However, if you want to challenge a will, then you may want to discuss your grievances with a lawyer, as it is possible you are able to make a claim  for provision.

One of the first areas to consider in an estate dispute is whether you are eligible to pursue a claim – not everyone is an eligible person, although you do not necessarily have to be related to the deceased.

You are generally eligible if you are a spouse or de-facto partner of the person who has died, which includes same-sex relationships; a child; or a former wife or husband.

There are also provisions for dependents, whether partially or wholly dependent on the deceased, with grandchildren, foster children or other members of the household potentially qualifying.

If you are eligible, this does not necessarily mean you will be successful. When making a claim for provision or further provision there are a number of matters the court will consider.

The financial needs and resources of the claimant are traditionally the primary factors in any claim, with the court taking into account current and future earning capacity. However, the age of the applicant will also be considered, with young children usually having a greater need for educational and living support than older applicants.

Should the court decide that you have not received adequate provision from the deceased's estate, it has the power to make orders that substantially differ to the wishes of the person who has written the will.

This has repercussions for those who are planning to write a will, as it is important to be aware that the family provision sections of the Succession Act 2006 can override the plans for your estate should you choose to leave out individuals who may be eligible to a share of your assets.

Contacting an experienced lawyer who specialises in the area of estates and probate can help you - whether you are planning to dispute a will or are hoping to draw up your own in a way that ensures future challenges are less likely to be successful and your assets are divided adequately between your intended recipients.