Contesting a Will: 10 Pertinent Questions in Estate Litigation

Are you feeling let down by someone close? Will contesting is an option for you. You can make a Family Provision Claim. But you should know that there is a time limit within which it should be made. Moreover, every state in Australia has different limitation periods.

This makes us believe that there are many questions you may be seeking answers for? This article has 10 most important questions concerning estate litigation.

Read the answers below:

1. What should I do if I have been left out of a will unfairly?

Ans. It is not an easy decision for the person contesting a will. Yet, if you think the decision is unfair, then an application can be made in your name. It is known as Family Provision Application. With this application, you can challenge the will and request the court to frame an order to provide you what is rightfully yours from the person’s estate.

You must consider your likelihood of winning the legal hassle.

2. Who will pay my legal expenditure for contesting the will of the deceased?

Ans. Normally, the expenditure made on filing a Family provision Claim can be paid from the departed’s estate. But the scenario may not be the same always. The executors may refuse to pay the fees. Under such circumstances, you can request the court and get the fees paid.

However, if you do not find success in contesting a will, the Court reserves the right to reverse the order. You may have to pay the fees to the deceased estate. It is advised to take a legal advice before filing the application.

Am I eligible for contesting a will?

Ans. There are numerous reasons for contesting a will. For instance, if:

  1. There is no appropriate provision for you in the will.
  2. You were promised a part of the estate, but it has not occurred.
  3. There has been a mistake and a courts’ order is needed to correct the error
  4. The will maker did not have the required capacity for preparing it
  5. The will maker was influenced

An application is vital to commence will contesting.

An application must be filed within a strict time frame. This is critical for contesting a will. Hence, contact a legal advisor as soon as possible.

3. What should I do if the will is unfair?

Ans. If you believe that the deceased has been unfair to you, you must get a legal advice from the lawyer with ample experience in contesting a will Victoria. You are required to make an application to the court and ask for an order stating that you should be given what you are contesting for.

Such kind of applications may be settled via mediation or through negotiations prior to the Courts’ hearing. However, the court must approve the alterations in the will.

4. Is there a time limit for contesting a will?

Ans. Yes, indeed there is a fixed time limit.

There is a stringent time limit for making a Family Provision Application in Victoria. Take a legal advice as soon as possible, if you are planning to make an application. Normally, you must make the claim within 6 months from the date of the deceased’s demise.

If you fail to do so, you will lose the right to make a Family Provision Application.

However, different states have different time limits. Check yours.

5. Can I make incapacity the basis of contesting a will?

Ans. Contesting a will is an open option for you if the will maker did not possess the testamentary capacity for making the will at that time.

The court may apply various tests to establish the testamentary capacity of the person at the time of will preparation. Besides, the court will review the medical records of the will maker during the procedure.

In addition to incapacity, consider all other grounds for contesting a will Victoria.

6. What is included in a deceased’s estate and what isn’t?

Ans. The personal representative or the executor must think about all the assets and the liabilities (taxation debts included) possessed by the deceased at the time of their death to deduce the correct value of the estate.

The deceased’s estate includes the properties possessed by him in his name at the time of death. But there are different rules for jointly owned properties. However, bank accounts, memorabilia, personal items, shares and vehicles owned by the deceased are part of his estate.

Assets owned in the name of a company or a trust is not part of the deceased estate.

If you have more questions, feel free to contact us.

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