Are you wondering if you have any recourse to contest the Will?

Perhaps you were expecting to be named as the executor of the estate and were surprised (and disappointed) when someone else was given that role. Or, maybe you feel like you were left out completely and are wondering if you have any legal options.

Yes, you do have the right to contest the Will.

However, contesting a Will is a big decision and not one to be taken lightly. Before making any decisions, it's important to consult with an experienced attorney who can advise you about your legal rights and help you make the best decision for your particular situation.

With that said, here are 5 must-know facts about contesting a Will.

1. Difference Between ‘Contesting’ and ‘Challenging’

It can be confusing between contesting and challenging a Will. Many consider these to be synonymous, but they are not.

You contest the Will when you feel you have been unjustly left out of it. To right such wrongs, as it was, you can file a Family Provision claim.

On the other hand, challenging a Will is to disagree with it or to claim that the Will itself should be invalidated. This situation typically occurs when the individual who created the Will was afflicted with a mental illness or was under pressure to modify it.

2. Eligibility to Contest a Will

Like every legal formality, contesting a Will also has a set of eligibility criteria. Only when you meet these requirements will you be able to contest the Will.

A family provision order application may only be submitted by, or on behalf of, an eligible individual, as specified below.

■ The domestic partner or spouse at the time of death;

■ A child of the departed (including an adopted child, a stepchild, or a person who treated the deceased as if they were their parent at the time of death) who was:

- less than 18 years old;

- a full-time student who is younger than 25;

- afflicted with a disability

■ A former spouse or former domestic partner of the dead who, at the time of the deceased's death would have been eligible to file a claim under the Family Law Act of 1975 of the Commonwealth but:

- Chose not to do so; or

- Started a claim but has not yet finished it.

■ A deceased person's child or a stepchild who wasn't mentioned above (ie adult children);

■ A certified caring companion

■ A grandchild

■ The spouse or domestic partner of the deceased person's child (i.e., son or daughter-in-law) where the child’s death occurred within a year of the death of the will-maker;

■ A person who was, had been, or would soon likely become a member of the deceased's family.

3. Must Wait Until the Grant of Probate

Even if you are eligible to contest the Will, you cannot immediately do it. You can only contest after the Grant of Probate in NSW.

In most cases, the executor designated in the will is required to get a Grant of Probate after someone passes away. A bundle of documents called Probate basically attests to the death of the dead.

The death certificate, will, and asset inventory will all be included in the probate papers. It is public information, and anybody may seek to access the Supreme Court records by paying the current charge.

So, you must ensure the grant of probate happens before contesting the Will.

4. Estate Assets Vs. Non-Estate Assets

You must understand the difference between estate assets and non-estate assets because you can’t contest the distribution of assets that aren’t part of the Will.

The basic rule here is that a dead person's estate need not include all their assets. Instead, you can think of it as "estate assets," which are mentioned in a will, and "non-estate assets."

Generally speaking, whatever the dead had exclusive ownership over is considered an estate asset. These assets include;

■ Any kind of real estate, including homes, buildings, and land.

■ Unproductive property, which includes expensive items like jewelry, cars, and furnishings.

■ Cash of any type, such as savings accounts and term deposits.

■ Intellectual property, including copyrights, royalties, and patents.

■ Intangible property, such as stocks, company ownership, and digital assets (Facebook, Twitter, Instagram).

Contrarily, non-estate assets are assets that the departed did not legally possess or that they shared with another person. These assets, as examples, include:

■ Property that is jointly held, both real and personal

■ Family/Discretionary Trusts

■ Company Resources

■ Superannuation

■ life insurance

5. Limitation Period

You should also know that there is a limitation period to contest a Will. You have only six months to challenge a will after the grant of probate. Although, in certain extreme instances, an extension of time will be granted.

However, the application for an extension cannot be brought after the final distribution of the

Estate. It is so because no asset distribution made before the application can be disturbed by the applicant or any order issued thereon.

So, the best bet is to contest before the six-month window expires.

Conclusion:

With this guide, we hope you understand the depth of contesting a Will before you proceed. It is important to understand all the potential implications and then make a decision.

Finally, remember that the statute of limitations for contesting a Will varies from state to state.

So, consult with an experienced attorney to discuss your legal options and ensure you take the best action for your particular situation.

We recommend Probate Consultants. Once you get in touch with a professional, you will understand everything from letters of administration to contesting a Will.

5 Things You Should Know Before Contesting a Will