The evidence needs to be strong to prove incapacity. The mere fact that you may have been left out of the Will alone is not enough. If there is contemporary medical evidence at the time the Will was made, which brings into question the capacity, and the Will appears inconsistent with prior Wills or the family structure, then that may point towards some incapacity.
We can assist you in assessing any evidence you have as to the Will maker’s incapacity and give you guidance on any further evidence needed and/or the potential for your claim to succeed.
I have not been given much at all under the Will. What can I do?
If the Will maker had capacity but just did not give you much of the estate (compared to other beneficiaries), then you may have a claim. You need to be an eligible beneficiary (see definition of this above).
If you are an eligible beneficiary, the next step is to determine whether what you have been given is adequate. That involves a number of issues including your financial needs and the relationship you had with the deceased.
We can give you more information as to what the court will take into account and we assist you with considering all the evidence and weighing up the potential for success or otherwise in contesting or challenging what you consider to be an unfair or unreasonable Will.
I think my sibling bullied the Will maker into making the Will against their wishes
The Will can be challenged on the grounds that the Will maker was unduly influenced in deciding how to make their Will.
However, this is a very difficult case to succeed in as the evidence must be capable of proving that the intentions of the Will maker were so overborne that they were coerced into doing something they do not want to do.
I don't want my child to inherit anything from me. Can I cut them out of my Will?
This is an unfortunately common statement. Disinheriting a child is not easy but it really depends upon all the facts and circumstances.
So, a wealthy adult child might find it difficult to contest the parent’s Will if the brother and sister were relatively poor and an adult child who has had nothing to do with the parent for the past 30 years may also find it difficult to claim that they were not adequately provided for.
These are merely two extreme examples. Usually, there is not one single element which can be relied on to exclude a claim.
You could consider at least documenting your reasons for not providing for your child. We can assist you in this and guide you as to what matters are relevant to be recorded. However, this is no guarantee that the Will cannot be contested.
I am the Executor and now I'm being sued by someone excluded from the estate
The role of the Executor generally, is to uphold the terms of the Will. But there is also some discretion for the Executor to negotiate to settle a claim rather than waste substantial money (from the estate) in fully defending a Will which, when objectively viewed, is unreasonable in its provisions.
We can assist you in considering all the evidence and weighing up the potential for success or otherwise in defending the claim.
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Learn about the key steps and timelines for dealing with a Deceased Estate including your role and obligations as executor, applying for a Grant of Probate, what to do if there is no Will and how we can help you.