Posted on: 23 August 2021Share
When a parent, grandparent, or spouse passes on, their estate is divided to dependants according to their will in a process called probate. However, it does not mean that heirs have to accept the contents of a will. Therefore, if a dependant is dissatisfied with a will, they have a right to challenge or contest it. While contesting a will is not very common, it happens, and such challenges are successful in some cases. That said, there are particular grounds under which one can contest a will.
The Ambiguity of Document's Intention
A will can only be treated as such if it is clear that the maker intended the document to be their final testament. While it might seem like a basic threshold, it is sometimes difficult to determine whether a will-maker intended the contested document to serve as their final will. For instance, if a will-maker had started writing their will but died suddenly before completing it, a dependant can challenge its intention in court. They could argue that the document in question was just a draft piece and not the final will as presented by other dependants. As long as a competent probate lawyer can raise doubt on the document's intention, one has grounds to challenge a will as presented.
Doubt on Will-Maker's State of Mind
A will is only valid if it can be established that the will-maker was of sound mind when drafting the document. Remember, being of sound mind means that the deceased must have had the mental capacity to make crucial decisions and understand the impact of such decisions. Furthermore, the dead must have been aware that the document they were making was a will and understand its purpose. In most cases, a will-maker's state of mind comes into question if there was an active diagnosis of cognitive impairment before their death. If the deceased also made a will while in an aged care facility, one may have grounds to contest the document, citing mental or legal incapacity.
The contents of a will must be the true wishes of its maker to be considered valid. However, there are cases where a person makes a will under the pressure of another party who may or may not be a family member. If a defendant can prove there was such manipulation during the making of a will, contesting the document is not difficult. However, such proof must be beyond a reasonable doubt because mere suspicion is not enough. For instance, just because a child or spouse spent a lot of time with the deceased when the latter was preparing a will does not constitute undue influence.
Reach out to a lawyer for more information about wills.