Introduction

A will refers to a document, which gives instructions regarding how a person’s possessions are to be distributed upon the death of that person to ensure that possessions will be distributed in accordance with their wishes. Although this may seems to be an easy way of preventing disputes after one's death, it is not always the case as it is common to see people challenging wills, particularly if they feel that the terms are not favorable to them.

Legal grounds for challenging a will

Prior to challenging a will, there are several factors that need to be considered in order to ensure that the challenge is possible. One of these is if there is a dispute as to the wording and meaning of the will. If there is an uncertainty in the wording of the will an application may be made to have the court decide what the deceased person really meant when the will was written.

If it can be shown that the terms of the will were unfair, the court may vary the will or the distribution of the estate to take into account the claim. This is probably the most common challenge and, relative to other types of claims, more simple to make and prove.

Less common grounds for challenging a will include proving that the deceased was experiencing undue influence at the time the will was made or by being able to show that the deceased did not have the legal capacity to make a will. Both of these challenges are difficult to prove as they require substantial medical or factual evidence to satisfy the court. Just because a person is very old or possibly suffering some mental deterioration is not of itself sufficient to prove a will could not be validly made.

Time limits

Time limits do apply when contesting a claim. The best course is to seek assistance as soon as possible after the person has died, to ensure that you avoid any problems with time limits.

What if dying without a will?

If a person died without a valid will, the estate will be distributed according to the rules of intestacy. The intestacy laws provide a predetermined formula for how the estate will be distributed. The intestacy rules can be quite complex but, as a general rule, the spouse takes the first portion and depending on the size of the estate and number of people who are eligible to claim, children and other relatives may then qualify for another portion of the estate.