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Challenging a Will

In some circumstances, it is possible for the validity of a Will to be challenged due to factors including mental incapacity of the deceased, undue influence, suspicious circumstances or even forgery of a Will.

What can you do?

If you have any concerns regarding the validity of a Will, it is important that you seek legal advice as soon as possible after the date of the death of the deceased.

Once instructed, we are able to lodge a Caveat at the Probate Registry to prevent the Grant of Probate of a suspicious Will. This will enable us to consider and advise you upon the potential invalidity of the Will in question.

Given the newly created Electronic Courts Management System and the potential for a Grant of Probate to be made quickly, urgency is of the utmost importance to prevent the Grant of Probate.

What we can do

On your instructions, we can investigate the circumstances surrounding the preparation and the signing of the Will. This can include reviewing any applicable medical evidence such as hospital notes (in particular to consider if there were signs of dementia), the Will drafter’s file and any notes made by the solicitor drafting the Will.

Often in these types of matters, there may have been a family member that has exercised undue influence or pressure on the deceased as to the contents of the Will and the signing of the Will or it was prepared and signed just before death raising suspicious circumstances.

A Court will review all the circumstances in assessing the validity of a Will and the Will making the process and whether any particular condition of the deceased or other matter affected his/her ability to understand and approve the contents of the Will.

If mental incapacity and undue influence are proven the Court may make a finding that the Will is void and should be set aside.

What if the Will is invalid?

If the Will is found by a Court to be invalid and that it was not intended to be the deceased’s last Will, then the earlier Will of the deceased will be considered to be the last Will of the deceased and will be admitted into Probate.  Consequently, the estate will be distributed in accordance with that earlier Will.

Alternatively, if the deceased did not leave an earlier Will and died intestate (without making a Will) then the estate will be distributed in accordance with the laws of intestacy under the Administration and Probate Act.

Free initial consultation

At your first free initial consultation, we will consider your instructions and advise you as to the potential merits of the claim and explain the steps involved in disputing the validity of a Will.  We will also provide you with an estimate of costs in pursuing such an action.

Call us now to arrange a free first consultation with an experienced estate litigator.  Phone 8231 1363 or click here to make an enquiry by email.

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