We all have the freedom to make our Wills on whatever terms we want. However, the law assumes that a Will maker – the “testator” – will make adequate provision for the proper maintenance of the testator’s family and other dependants. If adequate provision is not made for the testator’s spouse, children or dependants, a Will may be contested by these people.
There are also strict legal requirements which dictate how a Will must be made. If these legal requirements are not followed, a Will may be contested by any interested party.
A Will can be contested on two different grounds:
- The form – the Will document does not meet the formal legal requirements to be effective;
- The substance – inadequate provision is made for certain family members under the under the Will.
The form of the Will may be contested by applying to the Court if:
- The Will is not in writing and signed by the testator;
- There is a more recent Will made prior to the testator’s death;
- The testator did not have the necessary capacity to make the Will.
These challenges are made by applying to the Court for an Order invalidating the Will or recognising another Will of the testator.
The substance of the Will can be contested by the testator’s spouse, children and dependants, if they have been inadequately provided for under the Will or if they are receiving nothing under the Will. This is called a “family provision claim”. A Will dispute for inadequate provision is made by applying to the Court for an Order altering the gifts made under the Will.
There are strict timelines applicable to family provision claims, so if you feel you have been inadequately provided for under a Will of a loved one, you should contact McLaughlins immediately.
If you may have a family provision claim or you wish to challenge a Will document, please contact McLaughlins, your will dispute lawyers on the Gold Coast.