Contesting A Will – Time Limits To Be Aware Of

Grief can be all-consuming, and when you are trying to cope with the loss of a loved one, it's difficult to pay attention to all the details. Often, people miss information in the Will and miss their opportunity to contest it. 

What Does It Mean To Contest A Will? 

Contesting a Will means that you are effectively challenging a Will. Someone disputes its contents and wants to challenge what they received in it. They believe they were due more compensation than was factored. There are many reasons why someone may feel hard done by in a Will, which is why estate litigation lawyers can offer you advice on how to handle a Will dispute. 

Any eligible person is entitled to view the Will. You can pay for a copy of your own if you so desire. The list of eligible people includes anyone mentioned in the Will (whether they are a beneficiary or not), someone who was a beneficiary in an earlier Will, the surviving spouse or de facto partner, the deceased's parent, guardian, or children. Essentially, if the deceased had died without a Will and you are in the eligibility line, you may view the Will. In addition, this includes creditors who believe they have a claim against the estate can also view the Will. 

Who Can Contest A Will? 

Any person deemed eligible can contest a Will. Including partners, ex-partners, children, parents, guardians, and in some cases, grandchildren. 

You may contest whether it's valid, whether the deceased was under duress to write it as is, or whether your share was an appropriate amount. Any Will estate dispute will require legal advice. Will and estate lawyers have a deep understanding of the laws governing this process, and the only way to succeed is with professional guidance. 

Children and spouses are in the direct eligibility line so, these are generally more straightforward Will disputes. However,  in some cases, grandchildren may want to contest a grandparent's Will if they feel they should have received a larger portion. This is difficult to prove and would require evidence that the grandchild relied financially on the grandparent or that the grandparent had been a guardian in effect. 

Whatever your relationship to the deceased, estate lawyers are the first step to begin the process. 

What Time Limits Apply & What Happens If You Miss The Deadline? 

You have twelve months from the death to contest a Will. This used to be 18th months so, it is possible to require an extension, but both parties must consent to any extension. The time limit cannot be cut short. 

You can apply to contest a Will or extend the time limit if you were married to or, in a de facto relationship with the deceased at the time of their death. If you were a child of the deceased or a former spouse or de facto partner. A de facto relationship can exist even if the deceased was legally married to someone else. This does, however, mean the legal spouse could also contest the Will. If you were wholly or partially dependent, at any time, during their lives or were a member of their household. 

Likewise, grandchildren who were wholly partially dependent at any time during their lives may be eligible. Or someone who had a close personal relationship at the time of death. This is defined as two unrelated adults living together who provide each other care and support. This does not include someone who offered care in the course of their employment. You cannot simply claim these designations; you must have evidence to back your claim. 

To contest a Will two or more years following the death, you would need to provide sufficient cause for the delay in action. 

How To Contest A Will 

The first step is to reach out to estate litigation lawyers. The court will consider a variety of factors, but it gets more difficult the longer you wait (especially once people start spending). The process, from start to finish, can take as little as a few months. Or as long as two years or more, depending on how complicated the situation is. Your Will dispute lawyer will notify the executor that you intend to contest a Will. This is your opportunity to negotiate a settlement and prevent court proceedings. If in agreement, the lawyer’s will draw up a formal agreement. If there is no agreement, it will proceed to court. 

The executor (and beneficiaries) have time to prepare their evidence to defend against the claim. Before it proceeds to a final hearing in court the parties have an opportunity to discuss a settlement with a mediator. It's compulsory, and in many cases, the situation resolves itself here. If the parties still cannot agree, they will appear before a Judge for a final decision. Though things may fall apart at the meditation stage it is still possible to settle before the final hearing. 

When To Seek Legal Help 

If you feel you are entitled to more, contact AJB Stevens to discuss whether you're eligible to contest your loved one's Will. The earlier you involve estate litigation lawyers, the sooner you can resolve the dispute and move forward.

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