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Wills & Inheritance - Frequently Asked Questions

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Can a legal Will be challenged?

Yes. If the person executing the Will did not have capacity, was unduly influenced, the Will was incorrectly executed or the deceased had a “moral duty” to another, the Will can be challenged.

What does legal capacity mean?

When drafting and executing a Will, it is assumed a person is of clear mind and thought. If a person does not properly understand what they are doing because, for example, they have dementia or a psychiatric illness, they do not have capacity.  

What does unduly influenced mean?

When drafting and executing a Will, it is assumed a person is of clear mind and thought. That person has a right to leave their property to whom they want. If they are influenced to, for example, change their mind or leave specific assets to certain people, they may have been unduly influenced.

How do I ensure a Will has been properly executed?

The law provides specific rules for writing, signing and witnessing a Will. You should seek advice from National Compensation Lawyers in this regard.

What does “moral duty” mean?

A deceased may owe another a “moral duty” if there is an expectation they should do so because that person has a “financial need”. However, this is an extremely wide concept and will depend on the circumstances of each case.

Please contact National Compensation Lawyers to discuss this concept in more detail. Do not attempt to interpret your own situation. You may decide incorrectly.

Are there time periods for challenging a Will?

Yes. Each State and Territory differs, but an Application should be made within 6 months of the issue of Probate or Letters of Administration. The Court may extend this period in limited circumstances. Accordingly, we recommend you contact National Compensation Lawyers urgently.

If a Will is challenged, does the matter proceed to Court?

Most challenges are settled at mediation. However, if the parties cannot come to an agreement a Court will decide the matter. The Court has a wide discretion and will decide each case and its own merits. Facts which can be considered include the relationship between the parties, promises made by the deceased, financial need of a challenger and the size of the Estate.

Who pays the costs of a challenge?

Normally all party’s costs are paid from the Estate, unless the challenge had no merit.

What happens if there is no Will?

If a deceased person did not execute a Will, or a Will cannot be found, they are “intestate”. The property is then distributed in accordance State based legislation.

For more information, or if you wish to challenge, or oppose a challenge to a Will, please contact us for an obligation-free consultation with a lawyer on 1300 FEARLESS (1300 332 753).