All About Challenging a Will

A Will is a vitally important document that allows you to communicate wishes for your estate after your death, but there are circumstances under which it can be challenged or contested. Challenging a Will is different to contesting a Will which, by contrast, occurs when someone asserts that they have not received adequate provision in the Will, or have been unfairly left out. In this guide, we will consider contestation as a subset of making a Will challenge.

Time limits

A challenge to the validity of a Will must be done by lodgement of a caveat prior to a grant of probate being applied for by the executor. It can also take place prior to the expiry of 6 months from the date probate has been granted to the executor (a revocation).

Before challenging a Will

Before taking steps to challenge a Will, it’s important to examine its contents to make sure it’s worthwhile raising a dispute. A Will’s contents usually includes the following:

Executor, additional executors, or back-up executors in case the original one is unable to fulfil their duties
Specific gifts and heirlooms
Exact monetary assets, and who receives them
Who receives the estate and the exact percentage for each beneficiary
Beneficiaries under 18 years of age
Trust monies
Guardian of the testator’s children
Any bequests or legacies
Funeral instructions

People who can challenge a Will

To challenge a Will in Victoria or NSW, a person must have “standing”, which includes:

A beneficiary under a previous Will
A relative who would receive a share in the estate if the deceased person died intestate
A person who has relevant interest (receipt of a share or benefit) in the estate which would be otherwise affected by a grant of probate
A person who would otherwise receive a share of the estate if the Will was found to be invalid

Reasons a Will might be challenged

There are a range of reasons an individual may believe that a Will should be disregarded as a representation of a deceased person’s final wishes.

Amongst the main reasons is that the person who made the Will lacked testamentary, or mental, capacity. To be deemed to have capacity, the person who makes the Will must:

Understand that they are making a Will and what that means;
Recall the nature and extent of their property in general;
Understand and appreciate any moral obligations they may have towards family, for instance understand who may have claims on their estate; and
Not be affected by a disorder of the mind or delusion to the extent that the Will made would not have been made if the Will-maker was of sound mind

You can challenge the validity of a Will on the basis of capacity issues after probate has been granted. A Will can be rendered invalid if the person lacks this capacity to understand the value of their assets and who should logically inherit them when they are executing a Will. This can often be extremely difficult to prove, but there are also other ‘clearer-cut’ grounds for challenging a Will.

Legal Reasons

The Will was not signed in accordance with state law:

The Will must be dated and signed by the Will-maker in the presence of at least two adult witnesses, who are not named in the Will. If the Will was not signed, was signed improperly or was signed without witnesses it could be void for incompleteness.

In the case of fraud or forgery having occurred:

Fraud could exist if there is reason to believe a beneficiary of the Will committed fraud for the sole purpose of receiving a benefit under the Will. For example, the deceased may have been told the document was a power of attorney or deed, but it was in fact a Will. There needs to be evidence that fraud was committed and that the fraudulent conduct had a direct effect on the making of the Will.

Forgery implies that the Will was made or signed by someone else.

The person who made the Will did not know and approve its contents:

When a person makes a Will, they are presumed to have known and approved its contents. If there are suspicious circumstances casting doubt on whether this can be presumed, the proper grounds to challenge a Will on this basis would need to be established.

There was undue influence on the person executing the Will:

To prove undue influence in challenging a Will, there would need to be evidence of extreme pressure or coercion that caused the person to be unable to exercise their free will. Undue influence or duress may consist of a psychological or physical threat and does not include persuasion.

Where a contract or trust exists:

The deceased may have entered into a contract regarding their estate, and so there may be a claim for a breach of contract if its terms were not adhered to.

A trust is a legal device that separates the ownership and control of an asset and is used to protect assets or minimise tax. A testamentary trust is established under a Will to appoint a trustee to use property for the benefit of a beneficiary as specified in the Will. A beneficiary can challenge the decision-making of a trustee, but this requires action in court.

Emotional Reasons

Family Provision

The pain of the loss can be magnified if uncertainty exists as to how the deceased truly wanted their final wishes to be carried out. If the distribution of the deceased estate as set out in the Will raises these uncertainties, there may be grounds to make a family provision claim. This is often referred to as ‘contesting a Will’.

The person making this claim will be required to prove that the deceased had a moral duty to provide for their proper maintenance and support, and that the Will fails to make this adequate provision.

Contesting a Will while grieving the loss of a loved one can be a difficult and stressful time, so it is important to check if you are eligible or not to contest a Will before moving ahead.

Wrap up

Losing a family member is difficult, and challenging a Will can be costly, emotional and exhausting. Patience and understanding are key to this process. Wills are also a touchy subject for many families, especially if someone feels left out or slighted by the terms. These high-stakes emotional moments are interwoven with grief and sometimes people will act in uncharacteristic ways.

We understand that it can be tough to arrive at the decision to challenge the circumstances under which the Will was executed, or how a loved one’s assets are distributed in their Will. As this guide shows, there can be important reasons why you might want to – and need to – do so.

Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.