Challenging and Contesting a Will: What is the difference?
Challenging and contesting a will may sound the same but there are differences between them.
Contesting a will, to put it simply, is when you are unhappy with what has been put in the will and how the estate has been distributed. This is usually the case when a person feels they have been treated unfairly or they feel that they deserve more from the deceased estate.
On the other hand, challenging a will is when you question the validity of the will. This is the case when you feel the deceased may not have capacity, i.e was very unwell and probably wasn’t in a clear state of mind when signing a new will. Or they may have been under the undue influence of someone who would benefit greatly from the will being changed.
The most common reasons to contesting a will in QLD are:
- You have been left out of a will;
- You have not received what you thought you were entitled to in a will;
- You have not received what you were promised in a will.
The most common reasons for challenging a will are:
- You believed the deceased did not have capacity when they signed their will;
- The deceased did not make their will of their own free will (undue influence);
- You believe the will has been tampered with.
But not anyone can challenge or contest a will.
To challenge a will, you must have a greater interest in the prior will that you seek to have. (or under intestacy laws, if you are seeking to invalidate all wills of the deceased person).
To contest a will, the Succession Act 1981 (Qld) outlines who is eligible:
- Spouse (which include):
- Legally married couples
- De Facto couples
- Same-sex couples
- Registered partnerships
- A former spouse (in limited circumstances)
- Biological children
- Adopted child/children
- A dependant
Which means any person who was completely reliant on the deceased person at the time of the person’s death, these people may include:
- A parent of the deceased
- A grandchild of the deceased
- A parent of a surviving child, under the age of 18, of the deceased person
- A person under the age of eighteen.
How will contesting or challenging a will affect the outcome?
Challenging a will concerns whether a will is valid or not. So, if a will is successfully challenged, then the outcome of the will would be invalid– which means it is disregarded (after all, it is invalid), then the next-most previous will is the last valid will. Of course, there may be multiple wills that will become invalidated because of the successful challenges. In this case, the most recent valid will now become the last will. If all of the wills are invalidated, then the estate would be intestate (i.e. the person died without any valid will), and is distributed in accordance with intestacy laws.
Contesting a will is based on the claim that you have not been properly provided for by the will – and so you are seeking a greater portion of the estate. Sometimes this may entail specific property, but it may also be an adjustment of a specified percentage of the estate being given to you.
Can I get sued for challenging or contesting a will?
As long as you commence your estate dispute appropriately, you are unlikely to be sued for challenging or contesting a will. Early legal advice about your rights and position can often be the key to effectively managing your interests, and ensuring your claim is proper and sound, as well as offering the possibility to explore whether any alternative means are available to obtain a positive outcome.
On the other side, there can be serious consequences to litigation, so if a meritless claim is unreasonably pursued, then the court may order that the party with the unreasonable and baseless claim has to pay the legal costs of the other party.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.
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