A Will is personal, and many people don’t address its contents. That becomes complicated after you pass because some people may be surprised or disappointed by its contents. And, you can’t control who sees your Will after you pass because there are laws that govern this. Once a Will is signed by the testator, and two witnesses, it becomes a legal document. The Will should list at least one executor. The executor is the person who handles the funeral arrangements and distributes the assets and estate to the beneficiaries. The solicitor who wrote the Will should hold onto it until the testator’s death. After death, many people can request to see it. Before your death, however, only the solicitor and the individual who made the Will can view it. Being granted power of attorney does not allow someone to access the Will before the individual dies.
What Does It Mean To Challenge A Will?
It’s natural for someone’s circumstances to change over the years. It is just as normal for a Will to be changed and updated. This is often what leads to someone contesting a Will. There is a lot to consider. Many people have multiple marriages and blended families. Grandparents often take a more active role in their grandchildren’s lives now, which means closer relationships and greater expectations of provision. Contesting a Will is when an eligible person challenges the contents of a Will. It could be that they were left out entirely or felt inadequately provided for.
Who Can Challenge A Will?
The Succession Act 2006 qualifies who is an eligible person. And only eligible persons can challenge a Will. In a Will estate dispute, the person contesting a Will must provide evidence that they are an eligible person. This is easy for a spouse or child. It can be more complicated for those in close personal relationships. Spouses, de facto partners, children, grandchildren, household members, and close personal relationships are all classed as eligible persons to contest a Will. Most of these are self-explanatory. However, a member of the household could include someone who was wholly dependent on the deceased before their death. A close personal relationship could be a close friend who lived with the deceased or someone who offered personal care before their death. It is also possible for a former spouse to challenge a Will.
What Will The Court Have To Consider?
There are limited reasons for contesting a Will. The Court Will consider the challenger’s relationship to the deceased, any obligations the deceased had to the challenger, the applicant’s financial circumstances and needs, and the age of the applicant. The size of the estate is also a factor. The court Will also hear any evidence the deceased may have made to the applicant. It is up to the challenger to provide evidence of their claims. And this challenge should take within six months of a person’s death.
Can You Challenge The Will Of A Living Person?
No. You don’t have the power to view someone’s Will before their death. You cannot contest a Will until after probate. In most circumstances, the executor files for a Grant of Probate. This is a cache of documents to affirm the deceased’s death. This cache of documents includes the Will and death certificate. Once this is complete, anyone can pay the fee to view these public record documents. So, it would be incredibly challenging to convince Will and estate lawyers to take your case before the testator passes. And, it would be even more difficult to convince a judge you have a claim while the testator of the Will is alive.
What Is The Process of Challenging a Will?
If you wish to file a Will estate dispute claim, you need to enlist the services of a lawyer. If you believe there was undue influence on the testator when writing their Will, this could be cause for a challenge. This is difficult to prove, however. You can also challenge whether the person had the capacity to create the Will when they did. Again, this has a heavy burden of proof. The Court will consider evidence there was tampering or improper execution of the Will or that the Will wasn’t the most recent one drawn. Finally, you can contest on the basis of provision. For example, a child left out of a Will can file a challenge.
Why You Should Seek Legal Advice
Ultimately, you can’t stop an eligible person from challenging a Will. However, it’s wise to seek advice from estate litigation lawyers before you write your Will. The clearer you are in your Will, the less likely a Will dispute. And, even if someone does dispute it, they are less likely to be successful in their challenge if you have gone to lengths to be clear in your wishes.
If you believe you have been left out of a loved one’s Will or the provision was inadequate, you reserve the right to file a challenge. You need a team of dedicated deceased estate lawyers who can fight for your best interests and successfully contest the Will.
