Q. What is the difference between “contesting a will”, “challenging a will” and “disputing a will”?
The three terms are the most common terms people use to describe a legal problem with a will or with probate. On our site and in our Frequently Asked Questions menu, we are going to use the terms as follows;
1. Contesting a will. This is a contest, if you like, between family members for the funds and property of a deceased estate. The law relating to the issues involved in such a contest is found in the Family Provision Legislation in each state. There is usually no dispute regarding the validity of the will itself but instead, one or more of the family members have not been provided for or believe he or she has not been properly provided for by the deceased.
2.Challenging a will. You could say that this process is the opposite to contesting a will. Challenging a will is challenging the validity of the will itself. You say the will is not valid and should not be approved by the court for a Grant of Probate. “Probate” is proof of the will and gives the executor the authority to collect all of the funds and property of the estate and distribute them to the persons named in the will. The most common reasons for challenging a will are fraud, forgery, undue influence or lack of testamentary (mental) capacity of the will maker.
3. Disputing a will. This is a general term for any other dispute. There could be uncertainty about the terms of the will. These cases are often referred to as “Construction Cases”. The court is asked to work out what the deceased really meant in his or her will. Other cases are about how the executor is administering the distribution of the estate. These cases are often referred to as “Administration Cases”. And there are many other disputes usually between the executor/s and the beneficiaries.