Can you challenge a will?
The answer is yes.
Who can challenge? – Well, those for whom the will-maker had a moral or legal duty to provide and who can show that they are in a position of need. The most common example we see is where a child or sibling has been omitted from any provision and for no good reason. If someone is to be left out of a will, including a separated spouse, it is essential that the will-maker state in the will why that person is not being provided for. This could well prevent, or at least limit a challenge.
Does it go straight to Court? – No – all will disputes are referred to compulsory mediation where the vast majority of cases are settled.
Who pays the legal costs? – In the bulk of cases, the legal costs come out of the estate. That is one reason so many cases settle. The legal costs of separately representing everyone can seriously deplete and reduce the estate.
What does the Court do? – If it does go to Court, the Supreme Court retains the ability to re-distribute the Estate on a fair and equitable basis taking into account all of the factors, including the relationship with the will-maker, contact over recent years, contributions made to the will-maker and the estate including any support for nursing and then the needs and financial position of the person lodging the claim. The Court will always try to uphold the wishes of the will-maker, but where there is clear unfairness, the Court has the power to rectify the situation.
In Victoria – lodging a claim to challenge a will must be made within 6 months of the date of probate being granted by the Supreme Court. This is why many law firms are reluctant to distribute the estate within the first 6 months so as to limit the possibility of any claims being made and to protect the executors and the estate.
In New South Wales – the time limit to lodge a claim is 12 months from the date of death.
Proper legal advice should be obtained from lawyers who practice in wills and probate and who can advise on the merits of whether a challenge to a particular will or estate would be successful.