A Will or estate (where there is no will) Will or estate can be contested in several circumstances:
- By a Family Provision Application (also known as a Testator’s Family Maintenance (TFM) Claim or Succession Act Claim)
- Where the Will is not considered to be valid because of a lack of capacity of the person who made the will (the testator)
Family Provision Application – contesting the terms of a will
A person may make a claim against an estate where the testator has not made “adequate provision” for the person’s “proper maintenance and support”.
Establishing who is entitled to contest a will or estate requires consideration of their relationship to the deceased and is often surprising to those who are not experienced in these matters.
We recommend you clarify this aspect with us if you have any doubts, as there are very strict legal time frames for lodging a claim.
The question of whether adequate provision has been made is an even more complex legal question that depends on the particular facts and circumstances of the case.
Incapacity – challenging the validity of a will
A person can only make a will if they have capacity.
Whether a person has capacity is a question of fact at the time of the making of a will determined by the Court.
You may have concerns that someone has exerted undue influence on a testator (Will maker) because of their vulnerability.
It is extremely important that you speak with a solicitor if you have any concerns, as otherwise the estate may be distributed and the opportunity to challenge will be lost.
Ask to speak to one of our estate lawyers, Peter Elliott, Raoul Giudes, Kerri Fretwell, Kathleen Elliott or Jack Giudes at our Townsville or Ingham offices, for advice on making a claim against an estate.