Contesting or challenging a will can be a difficult legal process which significantly impacts family relationships and the distribution of estate assets.
If you are considering contesting a will, avoid these 7 common mistakes to improve your chances of achieving a successful outcome.
1. Missing Legal Deadlines
One of the most crucial mistakes in a family provision application is failing to file your application within the statutory deadline. In most jurisdictions, there are strict time limits for contesting a will, known as the “limitation period.”
Giving formal notice in Queensland
In Queensland, you have six months from the date of death to formally notify the executor of your intention to make a claim. Once formal notice is given, you must file your claim within nine months from the date of death. Missing these deadlines can result in losing the right to challenge the will altogether.
There are generally no specific time limits to challenge a Will’s validity but it is important to commence an action as soon as possible and especially before the estate is administered to the beneficiaries.
2. Lack of Proper Grounds
A will cannot be contested or challenged simply because someone is unhappy with their inheritance. There must be valid legal grounds for the contest.
Common valid legal grounds
- Inadequate provision for your proper maintenance and support
- Lack of testamentary capacity
- Undue influence
- Fraud
- Improper execution of the will
Without sufficient evidence to support one of these claims, the contest is likely to fail.
3. Inadequate Evidence
It is crucial to have strong evidence supporting the grounds for challenging the will, without this, the claim might not be successful. This can include medical records, witness testimony, and documentation demonstrating the testator’s mental state or undue influence at the time the will was executed. Gathering this evidence early in the process is essential, as it forms the foundation of the legal argument.
In family provision applications, the applicant needs to provide evidence of their relationship with the testator, their personal assets, liabilities and financial position, and level of financial dependence on the testator.
4. Ignoring Mediation Opportunities
Whilst not mandatory in all estate disputes, mediation is often a valuable tool in resolving disputes without the need for lengthy and costly litigation. A large percentage of family provision applications settle at mediation or shortly thereafter. Ignoring or refusing mediation can result in missed opportunities for settlement and increased legal fees for all parties involved.
5. Underestimating Costs
Estate litigation can be expensive, and parties may underestimate the financial burden of contesting a will. Legal fees, court costs, and expert witness fees can add up quickly. It is essential to have a realistic understanding of the potential costs and consider whether the financial outcome justifies the expense.
6. Straining Family Relationships
Legal battles over a will can severely damage family relationships. It is important to weigh the emotional and relational costs of a will contest. Open communication with family members and a willingness to understand different perspectives can help mitigate conflicts.
7. Failing to Consult a Specialist Lawyer
Contesting or challenging a will is a complex area of law that requires specialised knowledge. Consulting a lawyer with experience in estate litigation is crucial. A specialist lawyer can provide valuable advice on limitation dates, the likelihood of success, the best legal strategy, and the potential costs involved.
Final Thoughts
Contesting or challenging a will is a serious undertaking that requires careful consideration and preparation. By avoiding these common mistakes, individuals can improve their chances of success and achieve a more favourable outcome.
Need advice?
If you are preparing to contest a will in Queensland, our experienced Wills and Estates Lawyers are here to help. If you believe you have reason to challenge a will, contact us for an obligation free discussion.
Disclaimer:
The information contained in this newsletter is provided for informational purposes only and should not be construed as legal advice on any subject matter. Readers should not act or refrain from acting on the basis of any content included in this newsletter without seeking appropriate legal or other professional advice. The content of this newsletter contains general information and may not reflect current legal developments, verdicts, or settlements. We expressly disclaim all liability in respect to actions taken or not taken based on any or all the contents of this newsletter.
Greenhalgh Pickard’s Wills and Estates Team
