Losing a loved one is one of the most painful experiences humans will endure, and while it is an inevitability, Will disputes are not. If you believe you have been unfairly left out of a Will, there are rights to challenging a Will.
A Will is an official legal document to detail how your property and assets are divided when you die. You should always use Will and Estate lawyers to draw yours and you should seek out legal advice if you are thinking about challenging or contesting a Will. A lot goes into the preparation of Wills so contesting it is a complex process you can’t navigate without a legal expert.
What does it mean to challenge a Will?
Challenging a Will is the process whereby an eligible person goes through the legal process to question the validity or fairness of a Will. It may also be the result of alleged executor fraud.
There are several common reasons for challenging a Will.
- The Will was not drafted or signed as per the law.
- One of the witnesses to the signing is also a beneficiary.
- The deceased was not of sound mind or did not have the capacity to draw and sign a Will.
- There was undue influence in the drawing of the Will.
You cannot challenge a Will until you understand what is in it. You need to know what assets are listed, the beneficiaries included, and who is receiving what. While someone may want to contest whether they have received a fair share, challenging a Will is a larger process because you are questioning whether the Will is valid.
You also need to consider your relationship with the deceased. You have far more rights if you are the spouse rather than if you were a best friend.
Is there a difference between contesting a Will or challenging a Will? Yes. Contesting it simply means you believe you are entitled to a greater share as per family law. Challenging the Will is about challenging its validity, whether you believe it is falsified or someone put undue influence on the deceased to create a Will that benefited them. So, contesting a Will, is about challenging the contents of a Will, while challenging a Will is contesting the Will itself.
It isn’t something you should rush into, you have to first take time to establish why you disagree with the will in the first place. A lawyer can help you determine whether a Will estate dispute is appropriate and what steps to take next.
Why would someone want to challenge a Will?
While the need to contest a Will is most commonly due to someone being left out or believing they have been unfairly provided for, challenging a Will is a different task.
- If you suspect there is an error in the Will’s drawing, whether it was in the drafting stage or you suspect fraud, then you can challenge a Will. It might be that you believe there was a technical mistake in its writing or something was left out.
- You suspect the deceased was unduly influenced or outright coerced into making alterations to an existing Will. Or coerced into drawing a Will to benefit one particular person where no Will existed in the first place. For example, your only living parent drew up a Will leaving equal shares of everything to three children. When the Will was read, only one sibling received anything, and you suspect they coerced your parent into making those changes.
- Finally, you can challenge a Will if you suspect the deceased did not understand what they were signing or they did not possess the clarity of mind to make such a decision. This is particularly common in cases where the deceased had dementia, and someone took advantage of them to alter a Will.
That being said, the people who are eligible to challenge a Will are the same as those who are eligible to contest a Will.
- You were the legal spouse of the deceased at their time of death.
- You were in a de facto relationship with the deceased at their time of death.
- The deceased was your parent (biological, adopted, step or otherwise).
- You were once married to the deceased.
- You were, at any point, partially or wholly dependent on the deceased at some point.
- The deceased was your grandparent, and you were partially or wholly dependent on them at some point.
- You were in a close personal relationship at the time of the deceased’s death, including a roommate or friend who provided care.
When to Seek Legal Help & How AJB Stevens Can Help
Whether you are thinking about contesting or challenging a Will, you should reach out to estate litigation lawyers at the first possible opportunity. Deceased estate lawyers can help you understand the ins and outs of the challenge process, and can provide you with expert legal advice on how to proceed. We are here to provide you with confidence and clarity. Contact AJB Stevens today.