Disputing a Will in Canberra
In Canberra, disputing a will is possible under the provisions of the Wills Act 1968 (ACT) and the Family Provision Act 1969 (ACT). Under this legislation, a qualified person can challenge an invalid will or contest an unreasonable will. The contested wills team at Go To Court Lawyers is here to help you navigate the process of disputing a will in Canberra. Disputing a will in Canberra is possible if the testator was a resident of the Australian Capital Territory or was the owner of real estate within the jurisdiction.
Disputing The Legality Of Wills In Canberra
A formal, valid will is created according to certain statutory requirements. For instance, after the will is written, the testator needs to sign and initial the document in the presence of two witnesses. A document that does not adhere these rules is known as an informal will. Someone can challenge a will on the basis of its informality, and the Supreme Court of the ACT will judge the will as either valid or invalid.
Another method of disputing a will is to question the testamentary capacity of the deceased. A will is not valid unless the testator was legally capable of making decisions about their assets and estate. Additional grounds for disputing a will include the existence of a later will, or if the will is the product of undue influence, forgery or fraud.
The Process Of Disputing A Will In Canberra
When disputing a will in Canberra, the first step is to find out whether the Supreme Court has issued a probate grant for the will. If the court has not yet granted probate, the next step is to file a probate caveat to caution the court against probating the will. Whilst it is possible to file a challenge against a probated will, the court may find there is insufficient evidence to warrant revoking the probate grant once it has been issued.
Disputing A Will In Canberra: Family Provision Claims
There is a way of disputing a valid will. There is statutory provision in Canberra for an eligible person to contest a will when the testator has treated them unfairly or failed to account for their future financial needs. Such an action is called a Family Provision Claim.
To make a Family Provision Claim, a claimant must first present evidence that the testator had a moral responsibility to make adequate provision for them. The court then assesses this claim against a number of criteria, including (but not limited to) the financial circumstances of the claimant and the relative merits of other claims against the estate. The test for the court is what a “reasonably minded testator” would have done in the same circumstances.
Time Limits For Disputing A Will In Canberra
There is no time limit imposed on challenging a will in Canberra, although it is far preferable if the challenger can proceed before the will is probated and the estate distributed. There are, however, firm deadlines involved in disputing a will in Canberra through a Family Provision Claim. It is important to notify the executor of the claim during the six months following the issuance of the probate grant, and it is essential to file with the court during this time period. The court will allow a late application in very limited circumstances when the claimant can justify the delay.
Disputing A Will In Canberra: Eligibility
Not everyone is legally capable of disputing a will in Canberra. Only a beneficiary of a previous or current will, or someone who would inherit under intestacy law can challenge a will on the basis that it was made without testamentary capacity or under duress.
The list of those who are eligible to contest a will through a Family Provision Claim is further restricted to closely related family or those who were in a personal relationship with the deceased. The Family Provision Act 1969 (ACT) provides that the following people can make a Family Provision Claim against the estate:
- A former partner of the deceased (if the relationship lasted for two years or produced a child) or current domestic partner;
- A current husband or wife of the deceased;
- A child of the deceased, including biological or adopted children; and
- A financially dependent stepchild, grandchild or parent of the deceased.
Disputing A Will: Costs
In Canberra, the Court can make a cost order that directs one of the parties to reimburse the other for their legal costs of disputing the will. It is customary in civil litigation for costs to “follow the event”, so that the successful party recoups their legal costs from the unsuccessful party. This does not always apply in contested wills cases, as the Court will consider a range of factors before ordering costs against either party.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.