Cockburn Legal

Have you been unfairly provided for in a Will?
The death of someone close is a testing time. Contesting a Will can make things even more difficult. But if you believe you’re entitled to more from a deceased estate, we may be able to help.

Even though the law recognises a person's right to choose who will inherit his or her property, there are often very good reasons why a person should be contesting a Will such as:

You’ve been left out of the Will.
You've been unfairly provided for.
The Will is not valid.
The administrator was negligent.
There is no Will.

1. Family provision applications.

2. Did the Will maker have the capacity to make a Will?

3. Was the Will maker unfairly influenced?

4. Breach of trust claim.

5. Proper interpretation of the Will - Construction applications.

1. Family provision applications.

A person who has been left out of a Will, or unfairly provided for can make a claim for a larger share of a deceased person's estate.

Common examples of this include:

Where a wife is only left a life interest in the family home;
Where the deceased has three children and leaves their estate to two children in equal shares with nothing left for the third child;
Where the deceased makes no provision for their de facto partner (including both heterosexual and same-sex relationships);
Where the deceased makes no provision or lesser provision for a step-child.

The type of relationship that an individual has with the deceased leading to a potential claim against the estate continues to expand from state to state.

2. Did the Will maker have the capacity to make a Will?

A lack of “testamentary capacity” can invalidate a will. A beneficiary of an earlier Will can challenge a more recent Will if the deceased person did not have the mental capacity to understand what he or she was signing.

3. Was the Will maker unfairly influenced?

A beneficiary of an earlier Will can challenge a more recent Will if the deceased person was 'unduly influenced' by another person to sign a Will that did not reflect that person's true wishes.

4. Breach of trust claim.

A beneficiary under a Will or trust can apply to the court to remove an executor or trustee who fails to administer a Will or trust properly. The beneficiary can also seek compensation if they suffer financial loss as a result of the executor or trustee's wrongdoing.

5. Proper interpretation of the Will - Construction applications.

An application can be made to the Supreme Court to rule on the proper interpretation of provisions in a Will. Oral evidence and documents can be put before the Court to assist it in making its judgment.