HOW CAN I CHALLENGE A WILL?

 HOW CAN I CHALLENGE A WILL?

There are three ways of challenging a Will.

First, you may claim that the deceased did not have the mental capacity to make a Will.  In the absence of expert medical evidence, or witnesses who were present at the time the Will was made, this is very difficult to prove.

Second, you may claim that the deceased was unduly influenced by one of the beneficiaries.  This is also difficult to prove.

Third, you may make a claim for what is known as “Testator’s Family Maintenance”.  To make such a claim you need to prove that the deceased had a responsibility but did not make proper provision for you in their Will.  For instance, you may claim that you made a contribution to building up the deceased’s estate during their lifetime or that you had a special relationship with the deceased.

The factors that are taken into account by a Court in assessing an application for Testator’s Family Maintenance include:

1.             The nature and length of the relationship.

2.             The obligation and responsibility of the deceased to you, any other applicant and other beneficiaries of the estate.

3.             The size and nature of the estate including any liabilities of the estate.

4.             Your financial resources, including earning capacity, and your financial needs. 

5.             Any physical, mental or intellectual disability.

6.             Your age.

7.             Any benefits you have received from the deceased either during the lifetime of the deceased or through other means on his death, such as through Superannuation or Survivorship where there are joint tenancies.

8.             Whether you were financially dependent upon the deceased.

9.             The responsibility of any other person to look after you.

10.         Your character and conduct.