By Troy Martin
You’ve been deprived of your inheritance at an emotionally difficult time in your life. A close friend or family member has passed away, and the strain has been worsened by you being left out of the Will of your loved one or unfairly provided for under the Will.
So can you contest a Will? The simple answer to this question is yes, provided you are an eligible person and you are within the timeframe. However, like with most of life’s decisions the answer to can you do something is different to should you do something. Particularly in this area of law where you are dealing largely with your family and where the fight takes on an emotional side.
Should you contest a Will? A 5 Step guide
We have put together a 5-step guide for you, consisting of both the legal and the non-legal things you should consider before you contest a Will.
Step 1 – Are you an eligible person?
Your first step should be to begin by formulating a clear plan, and gaining an understanding of what you need to do. This should include whether you, in fact, are a person who can make a claim to the estate. You will be an eligible person if:You’re a Spouse of the deceased
You’re a Spouse of the deceased
You were in a De facto relationship with the deceased
You’re a child of the deceased (adopted children)
You’re a Grandchild of the deceases
You lived with the deceased and dependant upon the deceased at any time in the past
People in close personal relationships who lived with deceased at the time of death.
Naturally, family structures and relationships are not always as clean-cut as the list above. If you are unsure as to your standing you should seek legal advice to help you make the right decision.
Step 2 – Are you in the timeframe?
A further factor that requires some thought arises from the fact that the timeframe in which a Will must be contested is relatively short, weighing in at a brief 12 months. The need to gather the resources and willpower to muster a successful contest within that legally-stipulated time can add extra stress to what is already a difficult experience for you.
The emotional cost to yourself, as well as those around you, can be high, yet you will want to weigh this against the costs of a missed opportunity if you have not acted by the time those 12 months have rolled around.
If you find yourself outside the 12 month timeframe all hope is not lost. You can still contest the Will but you will have to demonstrate that there is a reason for the delay. Legal Advice should be sought ASAP if you find yourself in this situation.
Step 3 – Emotional and human consequences?
This is the first non-legal question you should consider. You should also bear in mind the potential human consequences to you and those around you, as hard feelings may be stirred by your contemplation of a contest.
Put simply, if you contest a Will, you may destroy the relationships around you. These are some of the most important relationships in your life. You need to ask yourself, is the contest really worth it?
Before you run off to a solicitor and instructing them to contest a Will of a loved one ASAP. Take a deep breath. Spend a few days, weeks perhaps (so long as you are well within the timeframe) to assess the situation and those relationships around you. Do not make such a big decision in the heat of the moment and when emotions are running at an all time high.
Step 4 – Size of the Estate?
Another consideration that may sway your decision is with regards to the actual value of the estate. It may be the case that the estate is too small to claim against.
Contesting a Will is not cheap and may deplete the estate’s assets. The estate Will have to defend your claim against it and will have to pay legal fees to do so.
Should you be successful in your claim, the estate may be ordered to pay your legal fees as well. So if the estate is small, all that trouble and risk you put yourself in may not be worth the return. If this case, going forward with the contest is not likely to be the correct decision from a commercial perspective.
Step 5 – Chance of success?
The next question to ask yourself is, are you likely to be successful in a claim? There is a reason for a Will. If Wills were easily disputed they wouldn’t be worth the effort to make! The Court will try their best to give effect to a Will and to follow the wishes of the deceased. It’s only in certain situations that the court will order something different to the Will. This question, although you need to consider, is one where you should seek legal advice to answer.
The most important thing to understand is that any contest will be assessed on the basis of need. Put simply, your claim will arise from the basis that in addition to the fact that you were not originally considered in the Will, you have few assets and little money, and you might even have a family to support. The court will look at how being included in the estate will impact you positively.
However, if you are significantly wealthier than the actual beneficiaries of the estate, you are unlikely to be successful in such a contest. However, as with all cases, each claim needs to be assessed on its own specific merits, with all potential beneficiaries also advancing their individual right to their inheritance.
Legal advice is essential here should you wish to pursue an action as all cases are different and when it comes to Wills and estates the court will look at a huge variety of circumstances.
In essence, your decision regarding whether or not to contest a Will is not simple, and may be a difficult commercial, social, and personal decision, especially at this time. You will need to consider the potential economic gain against the likely emotional strain before making your decision. Contact our team at Vaarzon-Morel Solicitors for advice and support so you can be secure in knowing whether contesting a Will is the right choice.