Contesting a Will
To contest a will means that you want to challenge the terms of an individual’s ‘Last Will of Testament’ in court. The will is a useless document until the testator is dead and any friend or family member who wishes to contest your will must have reasonable grounds for challenging it. There are specific circumstances that are accepted in a will contest. These are:
- The will was not executed by a solicitor or validated by a lawyer
- The testator did not sign the will
- The testator did not understand what he or she was doing
- The testator was not in their right mind
- There is a mistake on the document itself
- It is suspected that the will is a result of fraud
- The testator was unfairly influenced in the process of writing the will
No one but the person at a disadvantage in the will can contest the will in court. In other words, if a friend of the family sees that a family member has not been given what is rightfully theirs in the will, the friend cannot contest in court on behalf of the family member.
When a person is successful in contesting a will it is usually the case that only some sections of the will are incorrect. The part of the will that is wrong is removed and the rest remains as it was. If there is any special case (evidence or testimony that can be brought forward) then the person’s application for contesting the will is examined and evaluated.
There is a term called a ‘no-contest clause’, which is when the testator writes a clause into their will stating that any person (usually a family member) who attempts to contest the will, loses their gift and leaves the courtroom empty handed. If a friend or family member is simply unsatisfied with the terms of your will and this is their reasoning behind challenging the will, then this is inadequate ground for contesting a will and their contestation will be ignored by the court.
In the event of contesting a will in court, the court will consider any evidence or personal testimony that is presented in court. If the will is unclear and the truth not easy to determine then the court will simply go with the most persuasive case.
It is suggested that you contest a will within 6 months after the funeral of the dead person. It is however, not wise to wait this long. It is recommended to seek legal advice as soon as possible after the death has occurred if you are considering contesting a will. If the process is delayed for as long as 6 months, it is unlikely that the case for contesting the will is urgent or even valid anyway.