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Home | Deceased Estates & Disputes | Challenging a Will

Contesting the validity of a will

A will is a very important legal document, which needs to be prepared in accordance with the law to ensure it is valid. If a will is not valid, a previous will may instead be deemed as the last valid will. If there is no previous will, then the will-maker (“testator”) will have died without a valid will. Dying without a will is called dying intestate.

There are legal grounds upon which a will can be challenged. If you have concerns that a will may not be valid or perhaps you are unsure of its validity, you should contact Turner Freeman for more information.

FAQ

Who can challenge a will?

Who can challenge a will?

Any person who claims to have an interest in the estate of a deceased person, such as a beneficiary of a current or previous will, may be able to challenge a will.

Persons who would inherit under the laws of intestacy may also be able to challenge a will. The laws of intestacy are the laws that apply when a person dies without a valid will. This may include a husband or wife, domestic partner, child, grandchild, parent, or other close relative of the deceased person.

Executors of previous wills may also be able to challenge a will.

How can a will be challenged?

How can a will be challenged?

A will can be challenged on different grounds. These include where:

  • the will-maker ("testator") did not know or approve the contents of their will;
  • the testator did not have the mental capacity ("testamentary capacity") to make their will;
  • the testator was unduly influenced or coerced by another into making their will;
  • the will was not prepared, witnessed or signed in accordance with law;
  • the will was fraudulent or forged;
  • suspicious circumstances surround the making of the will;
  • the testator had language, vision or hearing difficulties, or was frail or unwell at the time of making their will.

How much time do I have to challenge a will?

How much time do I have to challenge a will?

It is important to act quickly when challenging a will. You should contact us as soon as possible for advice.

Ideally, a will should be challenged before probate or administration is granted. A caveat can be lodged over the estate to prevent a grant of probate being obtained.

There are instances where a will can be challenged and probate revoked (cancelled) even after Probate is granted. If you delay, you run the risk of the assets having already been distributed to beneficiaries.

An executor or administrator (the legal representative of the deceased person's estate) can obtain a grant of probate , as soon as 28 days after the date of death. In urgent cases, they may be able to do this earlier. Probate is the process of formally proving the will in Court.

If you wish to challenge a will, it is important you contact us as soon as possible so that we can halt probate being granted.

Do I need to lodge a caveat?

Do I need to lodge a caveat?

A caveat, if lodged prior to probate being granted, will halt the application process and allow you to be notified before probate is granted.

During this time, you can commence discussions with the executor and other interested parties about your concerns with the will. You can also seek evidence to support your views.

A caveat should be lodged as soon as possible. You should contact us immediately to prepare and file the caveat.

How can I prove that a person did not have capacity to make their will?

How can I prove that a person did not have capacity to make their will?

The capacity to make a will is known as 'testamentary capacity'.

To be successful in challenging a will on grounds of lack of testamentary capacity, it must be shown that the will-maker ("testator") could not understand at least one of the following:

  1. The legal effect of making a will;
  2. The type, size and value of their estate, at least generally;
  3. The persons who might be able to have a claim over their estate, and why; and
  4. The strengths of such persons' claims.

What is undue influence?

What is undue influence?

Undue influence is force or pressure placed on a will-maker ("testator") which results in a will that is not a result of the testator's free actions.

Essentially, what must be proved is that the testator was forced into making their will. This may be a result of actual force or threats.

How can I show that a Will was not made correctly?

How can I show that a Will was not made correctly?

To challenge a will on the grounds that it was not prepared, witnessed or signed in accordance with law, you will need to show at least one of the following:

  • the will is not in writing;
  • the will was not signed by the will-maker ("testator") or another person in the testator's presence and at their direction;
  • the will was not signed by the testator in the presence of at least two witnesses present at the same time;
  • the will was not attested and signed by both witnesses;
  • the testator did not intend the document to be their will, for example it may be damaged, marked or appear to be a draft only.

Just because the will was not made in accordance with law does not automatically make it invalid. There is legislation that allows wills to be deemed valid in certain circumstances even if all the usual legal requirements for making a will are not met.

What are some examples of suspicious circumstances?

A will can be challenged on the grounds that it was made in suspicious circumstances. 

Examples of suspicious circumstances include where:

  • the will was prepared by a person who is a major beneficiary;
  • the will-maker ("testator") was blind, elderly or in poor health at the time of making their will;
  • the will was made without any independent legal advice;
  • there are radical changes from a previous will;
  • the will was not read by or to the testator before they signed it;
  • the will benefits unexpected people or leaves out close family members or friends who would usually be expected to benefit.

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