Defending A Will

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Most Testators take great pains in making sure that their will is valid and the distribution of their assets is completely aligned with their wishes. And usually, this is accepted and understood by those who may be beneficiaries of the same. But it can happen that a family member or friend will not be happy with the Testator’s bequeaths. Under these circumstances, it is possible that someone will either challenge the will or contest the will. While these two actions sound similar, they are not.

Challenging A Will:

For a Will to be valid it must meet these specific criteria;

  1. It must have been written by the deceased 
  2. At the time of creation, the individual creating the Will must have been sound of mind 
  3. The Will must have been created within the confines of the law and all legal requirements 
  4. Whether there were any alterations to the Will after it was executed, including codicils 
  5. The deceased must have created the Will of their own free choice. 

 If a Will does not meet one or more of these stipulations, it is possible for an outside person to challenge the validity of the Will. When this happens the Testator’s wishes and distributions may be in jeopardy. To successfully challenge a Will the challenger must show one of the following circumstances occurred;

  • Fraud
  • Undue Influence
  • Lack of Capacity of the Testator
  • Forgery

When a claim is made that challenges the validity of the Will it is up to the Executor or possibly a beneficiary to determine if it is necessary and worthwhile to defend the Will. Most of the time, the Executor or a beneficiary(s) will have evidence to show that the Testator was of sound mind when the Will was created, hence bringing the issue to a swift resolution. If the Executor and/or the beneficiary(s) are successful in defending the Will, it is likely the cost of the litigation will be paid out of the estate. 

Contesting A Will:

Contesting a Will is different from challenging the validity of a Will. When a Will is contested it has to do with the manner in which the Testator distributed their assets. This can happen when someone is not named as a beneficiary who believes they should have been, or when a person who is named in the Will does not believe they have received their fair share of the estate. 

A Family Provision Claim is the most common form of contesting a Will. This type of claim is only entertained after the Will had been granted Probate status. In addition, the people who can bring this claim is limited to the following individuals;

  • Spouse
  • De Facto Partner
  • Children
  • Former Spouse
  • Dependent Grandchildren
  • Partial Dependent upon the deceased
  • An individual that had a close and personal relationship with the deceased

The central concern with a Will contestation is the fairness of the manner in which the Testator distributed their assets. It is up to the person contesting the distribution of assets to show that they were either entitled to more of the estate, or should be included in the distribution of the assets, and have been wrongfully excluded. If they are successful, it is possible that the Executor will be ordered to provide additional assets to the individual(s) or include the individual in the distribution of the assets. 

Again, the appropriate person to defend against a contesting of a Will is the Executor. However, if the Executor does not take appropriate action a beneficiary can also defend the distribution of assets. If the Executor or a beneficiary is successful in defending against the contest, it is likely the legal fees for the defence will be taken from the estate. However, a beneficiary who is taking on the action of defending against a Will contest should be sure to ask any other beneficiaries for their permission to proceed. Otherwise, a beneficiary who is not in favour of the process might object to the estate paying the litigation costs of the defence. Finally, if the person contesting the Will is successful, they too may be entitled to recover their legal fees from the liquidity of the estate.

The two issues of challenging a Will or contesting a Will can be emotional and complicated. Hence it is highly recommended that if you find yourself in a position of needing to take either action, you seek legal assistance and guidance immediately. 

If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.

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