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11 Sep CHALLENGING A WILL

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Challenging the validity a Will? Let’s talk.

It’s a difficult time when a loved one passes. Even more so when a Will is contested or it is felt that you and/or others were not appropriately provided for.

If a Will is being challenged, either the named Executor(s), major beneficiary or any person named as nominee acting for the major beneficiaries may defend the Will. When challenging a Will, an Executor may not lodge a claim against themselves but may only defend any claim challenging the validity of the Will. When the applicant challenges a Will, any attempt to administer the estate will be frozen pending the Court’s decision, unless otherwise agreed upon between the parties.

Am I eligible to challenge a Will?

A Will can be challenged by any person who is mentioned in the deceased’s previous Wills or if there is no Will, then a beneficiary under intestacy.

Beneficiaries under intestacy include:

  • Defacto partners
  • Spouses
  • Children
  • Grandchildren
  • Siblings
  • Nephews and nieces
  • Parents
  • Grandparents
  • Uncles and aunts
  • First cousins

Frequently Asked Questions

How do I challenge the validity of a Will?

To challenge the validity of a Will, a caveat must be lodged with the Supreme Court, Probate Registry prior to a grant of Probate of Letters of Administration being made. You must have reasonable grounds to lodge a caveat, otherwise you can be ordered to pay the estate’s legal costs in having your caveat removed. We recommend that you contact one of our Will dispute experts to obtain further information so as to avoid incurring unnecessary costs.

Can I still challenge the validity of a Will if a grant of Representation has been made?

You can still challenge the validity of a Will even if a grant of Probate or Letters of Administration has been granted. However, doing so would be much more difficult than challenging prior to the grant. The grant would have to be revoked by the Supreme Court.

What is testamentary capacity?

For a Will to be valid, the Will maker must have capacity at the time of making and executing the Will. This means that the Will maker must:

  • Understand that they are making a Will
  • Be aware and generally understand the nature of their assets and liabilities
  • Be aware of the people of whom they have a moral obligation to make provision for
  • Not be suffering from any illness or disorder affecting the mind to the extent that they are considered of unsound mind. Some of these disorders include but are not limited to:
    • Dementia
    • Alzheimer’s
    • Alcoholism
    • Delusions
    • Lack of capacity can be caused by the effects of medication and/or drugs

For those who suffer from a disorder affecting the mind, it is possible to make a Will during lucid periods and for the Will to be considered valid, if these four criteria are satisfied at the time of signing the Will.

What grounds can a Will be declared invalid?

A Will can be challenged and declared invalid for one or more of the following reasons:

  • The Will maker lacked capacity at the time of executing the Will
  • The Will maker was unduly influenced into making the Will
  • The Will maker did not know or approve the contents of the Will
  • The Will was not executed correctly by the Will maker
  • The Will that was executed was not the last Will of the Will maker
  • The Will was made in suspicious circumstances or there is evidence of Will tampering

If one or more of the above grounds are proved, a Court may exercise its discretion to declare a Will invalid. If the Will is declared to be invalid, then any previous Will of the deceased would be revived. If the deceased did not have a previous Will, then the estate will be distributed in accordance with the rules of intestacy under the relevant Act in each State.

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  • VICTORIA
  • NEW SOUTH WALES
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  • SOUTH AUSTRALIA
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  • TASMANIA
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