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[us_testimonial style=”4″ author=”David Fodor” company=””]It’s been a long road and it will be great to have closure on this matter after 4+ years.

I would like to thank you and the team at Hentys for their hard work, professionalism, dedication and endeavour. Without your support in this matter we would never have been able to reach this positive outcome. And mum would never have seen a red cent from her mum’s estate.

The family is very grateful to all involved.[/us_testimonial]

No Win No Fee

In all estate matters Hentys Lawyers are prepared to act on a No Win No Fee basis

NO RISK TO YOU

We assess your situation so you know the best approach to take.

No Court Battle

We’ve dealt with hundreds of disputes, and over 95% have been settled out of Court

NO RISK TO YOU

We assess your situation so you know the best approach to take.

No Surprises

We’ll keep you informed and involved at every step of your Will Dispute case

NO RISK TO YOU

We assess your situation so you know the best approach to take.

Hentys Lawyers Are Victoria’s Experts in Challenging a Will

Unless there are legitimate reasons, Victorian courts are unlikely to change a valid Will. Challenging a Will in Victoria is therefore only possible under certain circumstances.

With many years experience in the sector, the lawyers at Hentys have handled several will dispute cases and are best placed to assist you in challenging a Will. If you are considering challenging a Will the following information may be of use to you.

CHALLENGING A WILL WITH HENTYS LAWYERS

At Hentys, we understand that the death of someone close to you is a testing time, and challenging their Will can make things even more difficult. However that should not stop you from pursuing what’s fair. We’re here to help you get what you are entitled to from an estate.

We are committed to the interests of our clients and we will guide and represent you throughout the entire process. The team at Hentys has worked on numerous contested Estate cases and as such, we know how to offer adequate advice and support at all times.

  • We are committed to providing complete and accurate advice at all times
  • We will answer all of your questions promptly and in plain english
  • We will keep you informed of your options and progress throughout your case

Richard Cudlipp leads the Wills & Estates team. Richard is a Partner and Director at Hentys Lawyers, and has over 25 years of experience practicing in Will Disputes (link to Will Disputes). An industry expert with unrivalled knowledge in the field, Richard will ensure his team strives to reach a satisfactory outcome for your case.

CONSIDERING CHALLENGING A WILL?

In Victoria there are strict time restrictions for challenging a will. If you feel that you have been treated unfairly, it’s important to act quickly as Estate funds can sometimes be sold, transferred or spent and you may end up having no assets or funds to claim upon.

If you believe you have been inadequately provided for in a will, your first step is to contact the team at Hentys Lawyers today. During your free initial consultation, we will talk you through the entire process and if you choose to engage with our Melbourne based team, we will ensure that you are feeling comfortable and informed from beginning to end of your case.

First, we will determine whether you are eligible to make a claim, and ensure that the application is made within the imposed time limits. We will also help determine whether the basic conditions have been met to proceed with your case. Once we have determined this, we can then launch proceedings.

Don’t hesitate to make an enquiry, we offer free initial advice and are prepared to act on a No Win No Fee bases. You have nothing to lose!

For more information, see our Challenging a Will FAQs.

FAQs

Under What Circumstances May I be Able to Challenge a Will?
Are There Any Time Limits for Challenging A Will?
Am I Eligible to Challenge a Will?
How is it Determined Whether a Will is Valid or Not?
What Is Undue Influence in Challenging A Will?
What Is Family Provision in a Will Challenging Case?
What is Mediation in Challenging a Will?
What is the Difference Between Contesting a Will and Challenging a Will?
What is Testamentary Capacity?
Under what Circumstances May a Will be Challenged?
Under What Circumstances May I be Able to Challenge a Will?

In Melbourne, the most common reasons as to why a Will challenge will occur is because:

  • The Will-maker did not have the capacity to make the Will at the time it was signed
  • The Will was the subject of fraud, forgery or made under the influence of others
  • There was an insufficiency and inappropriateness of witnesses to the signing of the Will
  • The Will was left unsigned
Are There Any Time Limits for Challenging A Will?

If you are considering challenging a Will, it’s important to note that in Victoria your application must be made:

  • Within six months after the date of the grant of probate or administration, OR
  • Three months from the time you give notice to the estate.

In certain cases the Court may give an extension to this time so long as the estate has not been completely administrated. This extension however is not a guarantee.

Am I Eligible to Challenge a Will?

You may be eligible to challenge a Will if your relationship with the deceased falls under the following categories:

  • You are the husband or wife of the deceased person at the time of their death
  • You were living in a facto relationship with the deceased at the time of their death (including same sex partners)
  • You are a child of the deceased person
  • You are the former husband or wife of the deceased person
  • You were (at any particular time) wholly or partly dependent on the deceased person, and at any time a member of the same household as the deceased person
  • You are a grandchild of the deceased who was (at any particular time) wholly or partly dependent on them
  • You had a close personal relationship with the deceased at the time of their death
How is it Determined Whether a Will is Valid or Not?

When determining whether or not a will is valid, the Court will consider the following questions:

  • Is it the last will made by the deceased?
  • Was the Will executed correctly?
  • Does the Will adequately provide for family members?
  • Was the will-maker have of sufficient mental capacity at the time the will was executed?
  • Was the will-maker have of sufficient mental capacity at the time the will was executed?
  • Was the Will drawn up under undue influence?
  • Was the will altered after it was originally signed?
What Is Undue Influence in Challenging A Will?

If the will-maker was assisted in drawing up the will by someone who stands to gain a great deal from it, that person may have to prove to the court that there was no pressure, force or fear involved in the making of the will.

It’s important to note that flattery and persuasion is not unlawful and as such the court will not overturn a Will unless it considers undue influence has occurred. ‘Undue Influence’ means that the will-maker’s mind was coerced to an extent that the resulting will was contrary to the will-maker’s real intentions.

A person challenging a will by claiming that undue influence was involved must prove the fact with full details and supporting evidence. It is not a claim that should be brought lightly.

What Is Family Provision in a Will Challenging Case?

A Will can be challenged in the event that adequate provision has not been made for certain defined eligible persons, whether or not there was a will and whether or not the eligible person was mentioned in it.

What is Mediation in Challenging a Will?

The Court is likely to order a compulsory mediation session before any hearing unless there are special reasons such as the risk of violence.

At Hentys Lawyers, we understand that challenging a Will can be a confusing process, made all the more difficult due to the emotional circumstances. As a client of Hentys, we are committed to helping you make sense of the legalities of your case and assist you in lodging your claim within the imposed time restrictions.

What is the Difference Between Contesting a Will and Challenging a Will?

Contesting a Will and challenging a Will are two very different things. Contesting a Will is when you have been left out of Will, or feel you have been treated unfairly by the Testator within their Will. Therefore you launch a family provision claim.

To challenge a Will is to dispute a Will, or to say that the Will itself should be struck out. These types of cases usually arise when the person who made the Will was suffering from a mentally degenerating disease, or they were put under pressure to change their Will.

What is Testamentary Capacity?
  • In Melbourne, only adults 18 years or older have the capacity to create a will (however in some jurisdictions minors in the military or are married have the right to make a Will).
  • In Melbourne, adults are presumed to have testamentary capacity. It is only challenged in cases of dementia, insanity, under the influence of a substance or if they in some other way lacked the mental capacity to form a Will.
  • In Melbourne, to challenge a Will based on mental capacity, you must be able to show that the Will-maker did not understand the consequences of making the Will at the time of its creation.
Under what Circumstances May a Will be Challenged?

Fraud, Forgery and Undue Influence

  • This usually involves someone manipulating the vulnerable person into leaving all or much of the property to the manipulator.
  • Across all jurisdictions, ‘Undue influence’ merely means that the person lacked the free Will to make their own decisions or to bargain because of the manipulator.
  • As a result, the ‘Will’ becomes a document which does not record the true testamentary wishes of the Will-maker and thus will be found to be invalid.

Insufficient or Inappropriate Witnesses

  • In Melbourne, the Will must be dated and signed by the Will-maker in the presence of at least two adult witnesses. If this does not occur the Will could be void for incompleteness.

An Unsigned Will

  • In Melbourne, an unsigned Will in most cases is found to be invalid as it does not adhere to the requirements for execution of Wills as depicted in the Wills Act 1997.
  • For the exceptions to this rule see the Page on whether an unsigned Will is still valid.
Our Simple 4 Step Process

1 Review Your Claim
One phone call is all it takes for us to confirm whether you have a reasonable claim or not

1 Assess Your Case
We estimate the size of your claim and present you with our ‘No Win No Fee’ plan

1 Commence Proceedings
We’re with you every step of the way, managing the entire process on your behalf

1 Settle Your Case
We apply our knowledge and expertise to reach the settlement you are entitled to

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