- Posted by James Noble
To begin the process of contesting a will, you must have an interest in the deceased person’s estate. In other words, you may be someone who is referred to in the Will, or if the person dies without a valid will in place, someone referred to under the laws of intestacy such as a spouse or child of the deceased.
Need to know more?
If you want to know more about Contesting A Deceased Estate and if this document you may want to consider obtaining legal advice.
The most common reasons to begin Contesting A Deceased Estate include:
- Fraud Lack of testamentary capacity of the deceased when creating the Will;
- Manipulation, coercion or undue influence; and
- Absence of knowledge of the contents of the Will.
As Wills are usually made when the deceased person is elderly, the most prominent concern is whether the Will maker had the mental capacity to understand the contents of the Will. In circumstances where the Will maker lacks this capacity, the Will may be set aside by the court.
Before an order is made, the Court will consider whether the persons had a severe mental illness (such as Alzheimer’s) or brain disease (such as Dementia) at the time the Will was made.
Another reason to challenge a Will is if the Will maker was not aware of the contents of the Will or where they were pressured by someone to leave a particular item (usually property or another valuable asset) to a particular person where they would not usually have done so.If the Court decides this has been the case, the deceased’s previous Will is used. If no previous Will exists, the laws of intestacy will apply.
Although a deceased person may not have a “Will” at the time of their passing, if the person wrote a letter setting out their final wishes in an informal document with their signature, the Court has the power to declare that document valid.
In certain circumstances, this informal document may even be declared valid despite an earlier formal Will.
- This article was provided by James Noble - Brisbane Family Lawyers, Brisbane, QLD and is published here subject to the CCANSW website policy and Editorial, Media & Content Policy.