Is Challenging a Will Worth it?

Weighing the Pros and Cons

Introduction:

The death of a loved one is an emotionally challenging time, and dealing with the legalities of their estate can often compound the stress, especially if there are family tensions and if someone has been left out or they believe that they haven’t been treated fairly.  In these situations, individuals may find themselves contemplating whether to challenge a will. Challenging a deceased person’s will is a complex and potentially costly process that should be carefully considered before going ahead with challenging a will. In this blog post, we will explore the pros and cons of challenging a will to help you make an informed decision. In all Australian jurisdictions there are very specific grounds for challenging a will which the challenger must prove to be successful.

Understanding the Basics:

Before delving into the pros and cons, let's start by understanding the concept of challenging a will. Challenging a will refers to the legal process of disputing the validity or terms of a deceased person's will. The objective is to seek a change in the distribution of assets or to question the legitimacy of the will altogether. However, keep in mind that laws surrounding wills and estate vary across jurisdictions, so it's crucial to consult with a legal professional who specialises in probate law in your State or Territory. Sgro & Associates specialise in probate law and estate litigation and regularly assist clients with determining whether they can or should challenge a will.

According to the Victorian Law Reform Commission “… the vast majority of family provision claims are not ultimately decided by the courts; they are usually settled by agreement between the parties”[1].

Pros of Challenging a Will:

1. Validity and fairness:

The primary motivation for challenging a will is the belief that a will may be invalid or unfair. Validity concerns may arise if the testator (the person who made the will) lacked the mental capacity to make decisions, was unduly influenced (bullied or pressured), or if the will was improperly executed (formalities required to make a valid will were not followed). Challenging a will can ensure that the final wishes of the deceased are respected and that the assets are distributed fairly.

2. Protecting vulnerable individuals:

In cases where the deceased may have neglected or omitted family members who were financially dependent or in need, challenging the will can serve as a way of protecting their interests. This is particularly important in situations involving vulnerable individuals such as minors, disabled dependents of the deceased, or elderly family members.

3. Correcting errors and ambiguities:

Sometimes, wills contain errors, inconsistencies, or contain ambiguous language that can lead to confusion or unintended consequences. Challenging a will can rectify such issues, ensuring that the testator's actual intentions are properly interpreted and executed.

Cons of Challenging a Will:

 1. Emotional and financial strain:

Challenging a will can be an emotionally draining process, as it often involves disputes among family members and the re-examination of the deceased's wishes. Moreover, legal proceedings can often be time-consuming, highly stressful, and financially burdensome. Legal fees and court costs can quickly accumulate, especially if the case becomes protracted or goes to trial.

It is not unusual for legal proceedings to run for more than a year especially if the claim ultimately goes to trial.

2. Uncertain outcomes:

The outcome of challenging a will is not guaranteed, and the burden of proof usually rests with the person challenging the will. It can be challenging to meet the high legal standards required to prove that the will is invalid or that the distribution of assets is unfair. If the challenge is unsuccessful, the court may uphold the original will, leaving the person who challenged the will with potential financial and emotional repercussions.

3. Strained relationships:

Challenging a will can have the potential to create long-lasting rifts within families, sometimes irreparably damaging relationships. The toll on familial harmony and unity should be seriously considered before embarking on a legal challenge of the deceased person’s will.

4. Costs consideration.

The costs of an unsuccessful challenge of a will are generally borne by the person contesting the will, rather than the estate or the other beneficiaries. This means that if you decide to challenge a will in Victoria for example, and your challenge is unsuccessful, you may be responsible for paying your own legal fees and potentially some of the legal costs incurred by the estate or the other beneficiaries if they are parties to the dispute.

Under the legal principle known as the "costs follow the event," the unsuccessful party in a legal proceeding is usually ordered to pay the legal costs of the successful party. This principle aims to discourage baseless or unfounded challenges and ensure that parties consider the strength of their case before proceeding. It is important to note that the court has the discretion to determine the extent of costs awarded and may take into account various factors, including the reasonableness of the challenge, the conduct of the parties involved, and the size of the estate. If the Court finds that the challenge was unwarranted (had no prospect of success) or the challenge was made out of spite (vexatious) or never had a chance (unmeritorious) the Court can order the unsuccessful party to pay everyone’s costs.

There may be situations where the court determines that it would be unjust to make an unsuccessful challenger pay the costs, but these cases are exceptions rather than the norm.

To fully understand the costs implications of challenging a will in Victoria, it is advisable to seek professional legal advice from a solicitor who specialises in estate litigation like Sgro & Associates.  Sgro & Associates can provide guidance specific to your circumstances and help you navigate the legal process while considering the potential financial risks involved in challenging a will.

Conclusion:

Deciding whether challenging a will is worth it is a deeply personal and nuanced consideration. It's essential to carefully evaluate the specific circumstances, consult with legal experts, and weigh the pros and cons outlined in this blog post. In the end the only way of determining whether it is worth challenging a will is to speak to an expert in probate law and estate litigation. Challenging a will can provide an avenue to rectify potential injustices, protect vulnerable individuals, and clarify any ambiguities. However, it can also result in significant emotional strain, financial burden, uncertain outcomes, and strained relationships. Ultimately, it is crucial to make an informed decision that aligns with your values and respects the wishes of your loved one.

[1] Paragraph 6.7 Victorian Law Reform Commission - Succession Laws: Report October 2022

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