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Challenging the Validity of a Will – Roma
Contesting a Will or Estate – Roma
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The loss of a loved one is always painful... A dispute relating to the Will or Estate of a beloved family member who has recently passed away is likely to be traumatic for all involved.
A Will comprises the final words of the deceased from beyond the grave.
Therefore, disappointment or uncertainty about the Will maker’s bequests can leave long-lasting emotional scars. The discovery that you have not been adequately provided for in the Will of a loved one following their death will be confronting and raise uncomfortable questions about your relationship with the deceased that will never be answered.
Wills can create havoc and distress if used as weapons. Suspicions that the deceased was pressured or coerced when making their Will can lead to distrust and disharmony between family members.
CLO Lawyers Queensland provides legal guidance and support for families in Roma who are confronting troubling and stressful situations such as disputes relating to the Will or Estate of a departed person. We can provide you with the legal advice you seek, speaking plainly about the process, options, and potential outcomes. And we are transparent about our fees.
Disputing a Will in Queensland
Will disputes in Queensland generally relate to either challenging the validity of the Will or contesting the distribution of assets according to a Will.
Challenging a Will usually refers to challenging the validity or legitimacy of the document itself (for example, because the deceased did not have sufficient capacity or was unduly influenced or there was fraud involved).
Challenging the Validity of a Will
Challenging a Will refers to any litigation challenging the Will’s validity, giving rise to a claim that the Will should not be approved for a Grant of Probate. “Probate” is proof of the Will. It gives the executor authority to collect the Estate assets and distribute them to the persons named in the Will.
Some of the reasons for challenging the validity of a Will include:
- The Will fails to meet the formal requirements for execution of a valid Will;
- The will-maker did not have knowledge of or has not approved the contents of the Will;
- Lack of capacity on behalf of the will-maker;
- Undue influence; or
- Alleged fraud or forgery.
You are eligible to challenge the validity of a Will if you have an “interest” in the Estate. This means that you must have an entitlement either:
- Under the Will of the deceased (the last Will or an earlier Will); or
- Under state legislation where there is no valid Will (the legal term is “intestacy”).
The process of challenging the validity of a Will can be complex and confusing. We understand that challenging a Will is an emotional process and will ensure that you are treated with sensitivity and care. Our team of highly skilled lawyers can guide you through the process to achieve the best possible outcome.
Contesting a Will or Estate
You can contest a Will if you believe that you have been unfairly left out of a Will or not adequately provided for by the deceased. This is known as a family provision claim. It is a contest between family members for the proceeds of a deceased estate.
To make a claim, you must fall within one or more of the following categories of eligible applicants:
- The deceased’s spouse;
- The deceased’s child;
- The deceased’s dependant.
The process of pursuing a family provision claim can be complex and confusing. If you believe that you have been unfairly left out of a Will or have not been adequately provided for by the deceased, it is critical to seek legal advice. Our team of highly skilled Lawyers is here to guide and assist you in achieving the best possible outcome.
Will disputes in general
A will dispute can be used to describe any dispute other than challenging the validity of a Will or a family provision claim.
For example, a dispute might arise due to uncertainty about the terms of a Will because it has been poorly drafted and is unclear or difficult to understand. This is particularly likely to occur in the case of a homemade Will. Such a case could be described as a “construction case”.
Other situations resulting in uncertainty are:
- The circumstances may have changed between the time the Will was made and the deceased’s death;
- The estate assets may have changed between the time the Will was made and the will-maker’s death; or
- After making the Will, the deceased may have married, divorced, or had children.
- The circumstances may have changed between the time the Will was made and the testator’s death
- The assets owned by the testator may have changed between the time the Will was made and the testator’s death; or
- The testator may have married, divorced, or had children after making the Will
Disputes can occur about how the executor is administering the distribution of the Estate, sometimes referred to as “administration cases”.
When a dispute arises between an executor and beneficiaries, the beneficiaries may apply to the court seeking orders for the proper administration of the Estate. In extreme cases, a beneficiary may apply to the court seeking orders that the grant of probate be revoked, and another administrator appointed to carry out the duties properly.
Defending a Will
Have you been named as an executor of a Will? In that case, you are the person responsible for administering the deceased person’s Estate according to their final wishes. Essentially, you must safeguard the assets during the probate process to prevent loss and ensure distribution to the named beneficiaries.
In your capacity of executor, you may receive notice of a dispute concerning the Will or the Estate. In most cases, this will arise because a person intends to challenge the validity of the Will or pursue a family provision application to obtain a share, or increased percentage, of the proceeds of the Estate. As executor, it is your role to defend the Will.
Should a dispute arise, it is crucial to seek immediate legal advice about your duties as executor and how best to defend the claim.
If the dispute cannot be resolved, you will be named as a defendant in the proceedings, requiring your participation in the litigation. This can be a daunting and stressful experience and may delay the full administration of the Estate. It is your duty to defend the Will.
An executor who does not comply with their duties may face criticism from the court and suffer adverse consequences.
As an executor, you must obtain prompt legal advice before responding to any claim against the Estate. You should not take any steps to distribute the Estate unless advised by a Lawyer to the contrary.
If you receive notice of a dispute, immediately provide your Lawyer with a copy of the Will and any associated documents. A list of assets and debts of the Estate and a written statement regarding the facts as you know them will be of great assistance to your legal advisor.
CLO Lawyers is here to guide you through the process and ensure that you understand how to comply with your duties as executor. We will speak plainly about the process, your options, and potential outcomes.
Defending a Will challenge
You may be an executor of a Will that someone claims is invalid. That person can commence proceedings to challenge the Will.
As executor, you have a responsibility to defend the will challenge. The role of an executor in a Will dispute is to gather and present evidence that protects the interests of the beneficiaries and supports the Will being upheld.
Defending a contested Will
An executor must defend a contested Will against any application, including a family provision application. The role of an executor in defending a contested will is to gather and present evidence that protects the interests of the beneficiaries and supports the Will being upheld.
Costs of Defending a Will challenge or a contested Will
Are you an executor involved in defending a Will?
Your legal costs as executor will be paid from the assets of the Estate. You will not be personally out of pocket if the expenses are reasonable in the circumstances. This right of indemnity concerning your legal costs will only apply where you take the necessary steps required to defend the Will for the benefit of those entitled to share the Estate. Therefore, it is essential to obtain legal advice regarding the steps you must take to defend the claim.