Understanding Commercial Property Law: A Blog for Buyers and Sellers

If you've been surprised and disappointed by how a loved one's assets have been taken care of following their death, then you may have legal recourse. The Australian legal system in this case is quite liberal when it comes to how people can allocate beneficiaries, together with any amount they may receive. What are the situations when a potential beneficiary can challenge a will?

Is It Valid?

Firstly, it may be possible to dispute that a will is actually valid. While laws may be liberal in relation to "who get's what" they are very strict when it comes to how somebody can execute a will, how it should be witnessed and signed off.

For example, a will must only be executed when somebody is in "sound mind" and is legally eligible, in other words over the age of consent. There must be no external influence or threat of duress and the will must be signed in the presence of witnesses. A beneficiary cannot be a witness. Also, if a later will has come to the surface, then this will take precedence.

Challenging the Will

If you suspect any of these rules have been broken, then it is possible to challenge the validity of the will in court. This requires that a summons is issued by creating caveats or injunctions in order to prevent any estate distribution being made until a judge has time to determine the case. The first step is to create a detailed affidavit with a solicitor and to gather copies of evidence to support the proceedings in the court.

Inadequate Provision

It is also possible to object and contest the contents of a will if it is felt that inadequate provision has been made for spouses or children, or other dependents. In this case, a contested probate solicitor can put forward the case.

Note that there are time limits associated with any challenge made to a will, but otherwise family members and dependents have a right to seek a more adequate distribution associated with their forward well-being. In this case, a judge will also take into account whether a new distribution would adversely affect other valid beneficiaries, the type of personal relationship that existed between the applicant and the departed, as well as the actual needs of the defendants, their age and circumstances.

What about No Will?

If the departed has issued no will this is known as "intestacy." In this case the overriding consideration made by the court is to provide for dependents. The distribution of assets to beneficiaries will be subject to legislation in terms of their order of priority. It will be necessary for a solicitor to apply to be granted letters of administration on behalf of the beneficiaries concerned.