Contesting A Deceased Estate
If you believe that a deceased friend or family member’s Will does not reflect their last wishes or are concerned with the circumstances and nature of an updated will, you may challenge the validity of the Will. This situation commonly arises where the deceased friend or family member may not have been in the right state of mind to understand what they were doing, or if a fellow family member has manipulated the person’s wishes.
To begin the process of contesting a will, you must have an interest in the deceased person’s estate. In other words, you may be someone who is referred to in the Will, or if the person dies without a valid will in place, someone referred to under the laws of intestacy such as a spouse or child of the deceased.
Reasons for Contesting A Deceased Estate
The most common reasons to begin Contesting A Deceased Estate include:
- Lack of testamentary capacity of the deceased when creating the Will;
- Manipulation, coercion or undue influence; and
- Absence of knowledge of the contents of the Will.
As Wills are usually made when the deceased person is elderly, the most prominent concern is whether the Will maker had the mental capacity to understand the contents of the Will. In circumstances where the Will maker lacks this capacity, the Will may be set aside by the Court. Before an order is made, the Court will consider whether the persons had a severe mental illness (such as Alzheimer’s) or brain disease (such as Dementia) at the time the Will was made.
Another reason to challenge a Will is if the Will maker was not aware of the contents of the Will or where they were pressured by someone to leave a particular item (usually property or another valuable asset) to a particular person where they would not usually have done so. If the Court decides this has been the case, the deceased’s previous Will is used. If no previous Will exists, the laws of intestacy will apply.
Although a deceased person may not have a “Will” at the time of their passing, if the person wrote a letter setting out their final wishes in an informal document with their signature, the Court has the power to declare that document valid. In certain circumstances, this informal document may even be declared valid despite an earlier formal Will.