If a person has recently passed away and they left a Will, their estate could be faced with a claim against the Will.
There are two main types of claims against a Will:
- Challenging the validity or making of the Will; and
- Seeking provision or further provision from the Will.
Challenging the Will
A beneficiary of the Will or family member may challenge the validity or making of the Will on various grounds such as:
- The deceased person did not have mental capacity when the Will was signed;
- There was undue pressure and influence on the deceased when they made the Will;
- The deceased did not understand and approve the contents of the Will.
If the Will is found to be void, then the deceased person’s estate is administered under the last valid Will (if one exists). If there is no last valid Will then the deceased will have died without a Will and the estate will be administered under the laws of intestacy. Please refer to our blog on “What happens if you die without a Will” for more information intestacy.
Seeking further provision
In addition to the above, a beneficiary or family member may be unhappy with the gift they were left under the Will or may have been left out of the Will entirely. In that case the unhappy beneficiary or family member may seek further provision from the estate. However, that person must be eligible to seek further provision meaning they are either:
- A spouse (this includes a wife, husband or person in a de facto relationship);
- A former spouse;
- A child; or
- Any person who was wholly or partly dependent on the deceased and was a grandchild or member of the deceased’s person’s household.
When a claim against a Will is made, the court will look to the needs of the claimant and the other beneficiaries before making any decisions.
Role of executor
It is the executor’s role to defend claims against the deceased’s Will, but in some circumstances it is the executor who seeks to challenge the Will. This can place the executor in conflict with their executor duties. To overcome this the executor will often be advised to step down from their role as executor before they proceed to bring a claim against the Will.
It is important that executors named in a Will seek appropriate legal advice prior to taking any steps as executors to avoid any conflicts.
At Southern Waters Legal we provide expert legal advice in drafting Wills to minimise estate challenges. We also assist executors in defending claims and claimants considering bringing a claim. Please do not hesitate to contact our estates team on (02) 9523 5535 to discuss further.
