You may feel that you were particularly close to a friend or relative who was entering their final days, and due to certain circumstances, you may have expected them to include you in their will. However, you've just seen this final document and are disappointed by what you read. Does the Australian legal system allow you to contest a will and if so, under what circumstances?

Legal Structure

You should first have a look at the structure of the will itself to determine if it is actually valid. There's a fair amount of leeway in terms of how any testator may distribute their money and possessions, but the law is quite strict when it comes to how the will is actually executed. One of the first questions to ask is whether the executor was of sound mind and therefore eligible. If there was some type of external influence in play, this could be another reason to bring up a challenge, and if any witness also turned out to be a beneficiary, you can lodge a legal challenge.

Mounting a Challenge

When any of those rules are broken, you are allowed to go to court to challenge the will's validity. A summons will be issued by creating an injunction to prevent the distribution of the estate assets until such time as a judge has looked at everything. An affidavit will need to be drawn up by a solicitor, and you need to have plenty of good evidence to support your case.

Contested Probate

On the other hand, you may feel as if an inadequate amount had been set aside for dependents, be they children or a spouse. Such a case will need to be put forward by a contested probate solicitor.

Redistribution

You always have to take into account time limits associated with the distribution of a will and any subsequent challenges. Having said that, you may want to exercise your right to seek a better distribution of the assets, but the judge will also want to determine how such redistribution would affect other beneficiaries. Much will depend on the individual needs of each defendant and the kind of personal relationship they enjoyed with the departed.

What Happens If It's Invalid?

If a will is subsequently challenged and found to be invalid, then this will trigger intestacy rules. The court will want to see how each dependent fits into the framework, and legislation will determine the hierarchy and order of priority. The court will grant a letter of administration to a solicitor on behalf of each of the beneficiaries.

The Need for Advice

This can be a very complicated scenario, and it's always best to get in touch with a probate lawyer.