Main Reasons for Contesting a Will In NSW
The main reasons for Contesting a Will of a loved one, can range from being left out of a Will to believing that the deceased did not understand what they were doing when they made their Will or needing the Court to clarify how the Will should be interpreted.
To make a valid Will a person needs to have a certain level of understanding what they are doing by making their Will. This is referred to as Testamentary Capacity.
A lack of Testamentary Capacity will mean that the Will is not a valid Will and a previous Will needs to be relied on or, if there is no previous Will, the deceased Estate needs to be distributed in accordance with the Rules of Intestacy.
Lack of Valid Execution
There are a lot of formal rules surrounding the way a Will is to be signed and witnessed. A failure to strictly follow these rules will mean that the Will has not been signed properly and the Will will not be valid.
The easiest way to ensure that you meet the strict and formal rules for executing your Will is to have your Will drafted by an expert Wills and Estates Lawyer and sign the Will at their offices to ensure it is valid.
Lack of Knowledge and Capacity
Will’s are often challenged on the basis that the person making the Will did not understand what they were doing. This has become a common Will challenge and is usually linked to a diagnosis of dementia or another medical condition that affects the reasoning of the person making the Will.
Fraudulent Wills are Wills that were not made by the deceased but by someone known to the deceased who wants to inherit from the deceased Estate. These types of Will Challenges can occur when there are a number of Wills of the deceased and one of the beneficiaries claims that one of the Wills is fake.
Rectification of a Will
It is not uncommon for the beneficiaries or the Executor of a deceased Estate to apply to the Court for clarification or rectification of a Will.
The Court has the power to change a Will if the Will is not clear or a party can prove that it does not have the effect that the deceased wanted it to have.
If you are thinking of Challenging a Will you need to seek expert legal advice from a Wills and Estates Lawyer as soon as possible to discuss your situation.
Graeme Heckenberg has offices in Avalon on the Northern Beaches and offers his expertise of 25 years to clients in the surrounding peninusula. If you need to discuss Estate matters or wish to discuss whether you have a case for contesting a Will call today for a consultation on 9221 0341 or email firstname.lastname@example.org.
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