You just lost a loved one and are still mourning, only to learn that you or someone else close to the deceased was not included in their will. On further scrutiny, you find out that the will doesn't represent the sincere wishes of your loved one. What should you do? You can protest the will through a legal process known as probate.
If the probate process is successful, the court nullifies the testator's will or testament. It also dictates how the estate of the deceased will be divided and who will get a share. Before you go into probate, it's essential to know the circumstances under which you can protest a will.
Non-Compliance with State Laws
The testator or drawer of the will should comply with state laws and regulations for their will or testament to be declared valid. According to various states in Australia, a valid will is one which meets the following requirements:
- The will must be in writing, whether handwritten or typed
- The will should have the signature of the testator or their representative
- At the time of signing, there must be two witnesses
- The witnesses must sign the will
If a will doesn't meet these legal requirements, you can protest it in court. For example, you may have evidence that another individual signed the document without the direction or consent of the testator.
Undue Influence on Testator
One of the most common causes of probate is an undue influence on the testator at the time of writing the will. Family members can cause undue pressure on the drawer of the will to change the terms of the document, leave out legitimate beneficiaries or alter the division of the estate. Pressure can be in the form of denial of basic needs such as care (for the elderly), verbal abuse or threats.
If you have evidence that your loved one was under pressure when writing or amending a will, you can protest it.
Evidence of Fraud
You can protest a will if the terms therein resulted from fraudulent activity. Examples of fraud include the following:
- A third party altering the will without the knowledge or consent of the testator
- Misrepresenting facts which affect the estate division process
- Giving false information about potential beneficiaries, hence having them locked out of the will
For example, an individual may mislead the testator into thinking one of their beneficiaries wishes ill of them. The testator may leave the said person out of their will or reduce their share of the estate. In such cases, the court can invalidate parts of or the entire document, depending on the extent of the fraud.
Protesting a will isn't a simple process. You have to convince the court that the document doesn't reflect your loved one's wishes. Hire an experienced wills and estates lawyer to help you maneuver the process.
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