Do you believe you’ve been left out of a will unfairly? If so, you can work with a legal representative to contest the will. However, it’s not always an easy task to do. Contesting someone’s final wishes often puts you at odds with your family and it can irreparably damage relationships. As the challenger, you also have the burden of proof. It’s up to you to prove that the will needs to be changed. Before you put yourself through the stress and the emotions of contesting a family member’s will, you need to make certain you’re even eligible to do so.
Who Can Legally Challenge a Will?
The first thing to determine your eligibility is to see if you are one of the people whom Australia law says can actually contest someone’s will. There are several categories of eligible individuals. The first category includes the current spouse, any former spouses, and anyone whom the state determines is or was a de facto partner. This last classification includes someone who was living with the person as if they were spouses even though they were not legally married. It includes same-sex partners in addition to opposite-sex partners.
The next group includes children, step-children who are dependent upon the deceased, and grandchildren who were either partially or wholly dependent upon the deceased. Note that there are some particulars for each of these individuals that vary from state to state.
Others who may legally contest a will include anyone in the household who was at least partially dependent on the deceased or someone who had a close personal relationship with him or her. Again, this does vary from state to state, so always check with a legal representative before contesting a will.
Are You Within the Legal Timeframe?
There is a time limit in place for contesting someone’s will. This time limit differs from state to state, however. In Victoria, for example, you have six months to file your challenge from the day the grant of probate is made. In New South Wales, on the other hand, you have 12 months starting on the day the person died. In some special cases, you may actually be able to file a contest after the time limit but you will need to contact a lawyer and work with him or her to determine if you can do this.
Do Your Circumstances Meet the Law?
You can’t simply contest a will because you believe you didn’t get what you should have. You have to have a reason that falls within the court’s allowable factors. For example, if you can show that your financial needs cannot be met by your share, you may have a case. You may also be able to contest the will if you can show that the deceased was mentally unable to understand the changes to his or her will that he or she was making. You may also have a case if you can show that the executor of the will was unfair due to outside influence and is not truly representing the deceased’s wishes.
