Challenging a Will

When Can a Will be Challenged?

In some circumstances, it is possible to challenge the validity of a Will. This may occur where there are concerns about the circumstances in which the Will was made or the capacity of the deceased at the time of its execution. Grounds upon which a Will may be challenged are::

• Lack of Testamentary Capacity: The deceased did not have the mental capacity to understand the nature and effect of the Will at the time it was made. The deceased must have understood the nature of making a Will, the extent of their assets, and the claims of those who might reasonably expect to benefit.
• Undue Influence: The deceased was coerced or pressured into making the Will in a way that does not reflect their true intentions.  If someone exerted pressure on the deceased to make or change their Will, this may invalidate the document.
• Suspicious Circumstances: The Will was prepared or signed under circumstances that raise questions about its validity, such as being made shortly before death or in the presence of a beneficiary who stands to gain significantly.
• Forgery or Fraud: The Will was forged or fraudulently altered. If the Will was forged or altered without the deceased’s knowledge or consent, it can be declared invalid.
• Non-Compliance with Formal Requirements: A Will must generally be in writing, signed by the testator, and witnessed by two people present at the same time. However, under section 11 of the Act, a document that does not meet these requirements may still be admitted to probate if the Court is satisfied it reflects the deceased’s testamentary intentions.

What Can You Do?

If you have concerns about the validity of a Will, it is important to act quickly. Once probate has been granted, it becomes more difficult to challenge the Will. We can assist you by lodging a Caveat with the Probate Registry to prevent the Grant of Probate while we investigate your concerns. This allows time to gather evidence and assess whether there are grounds to challenge the Will.

It is crucial to obtain legal advice before doing so. Lodging a caveat without reasonable grounds or failing to take further action to challenge the Will can expose you to significant costs risks, including adverse costs orders if the Court determines the caveat was improperly lodged or maintained. Our experienced estate lawyers can assess the merits of your concerns, guide you through the process, and help you minimise potential risks.

Court Powers to Rectify Wills

If a Will does not accurately reflect the deceased’s intentions due to a clerical error or a failure to understand instructions, the Court may order rectification under section 22 of the Act. Applications for rectification must generally be made within 6 months of the grant of probate or administration, although extensions may be granted in limited circumstances.

What If the Will Is Invalid?

If a Will is found to be invalid, one of the following outcomes will apply:

1. Earlier Valid Will:

1. • If there is an earlier valid Will, it will be admitted to probate, and the estate will be distributed according to its terms.

2. Intestacy:

1. • If no earlier valid Will exists, the estate will be distributed under the rules of intestacy.

What We Can Do

At Websters Lawyers, we can assist you with:

• Investigating the circumstances surrounding the preparation and signing of the Will.
• Reviewing medical evidence, solicitor’s notes, and other relevant documents.
• Lodging a Caveat to prevent probate from being granted while we investigate your concerns.
• Representing you in Court proceedings to challenge or defend the validity of a Will.

If a Will is found invalid, we can guide you through the process of determining how the estate should be distributed, whether under an earlier valid Will or intestacy rules.

Free Initial Consultation

At your first free initial consultation, we will:

• Review your instructions and any documents provided.
• Advise you on the merits of your claim and explain the steps involved in disputing a Will.
• Provide an estimate of costs for pursuing such an action.

Call us now to arrange a free first consultation with an experienced estate litigator. Phone (08) 8231 1363 or click here to make an enquiry by email.