A key concept in the law of Wills is the freedom to divide your estate as you see fit.

In the ACT, if a willmaker had capacity to make a Will, intended the document to be a Will, knew and approved of the Will’s contents, and was not subject to undue influence or fraud, they could decide how to distribute their estate.

Testamentary freedom is limited by the fact that a willmaker would have some responsibility to provide adequately for certain family members. Failure to do so would allow those disappointed beneficiaries to make a family provision claim against the estate. This is what is most often meant when someone talks about ‘challenging a Will’.

There are other very important (and increasingly common) ways to challenge a Will that could result in the whole Will being held to be completely invalid. There are several grounds on which the essential validity of a Will can be challenged in the Australian Capital Territory.

Testamentary capacity

In order to have testamentary capacity, the willmaker must understand what a Will is, the nature and extent of the assets, who is in their family and be able to balance the relative needs of their family members. They must also not suffer any delusions that affects how they divide their estate.

You may challenge a Will if the willmaker fails any single element set out above.

A person’s testamentary capacity may be affected by underlying health conditions, such as a degenerative illness of the mind. However, having an illness such as dementia does not automatically mean that the testator lacks testamentary capacity.

Intention to make a Will

The willmaker must also have intended the document to have the effect of a Will. For example, a document which expresses their wishes in a non-binding manner, or a mock Will, will not be admitted as it does not intend to be legally binding with respect to their assets.

Knowledge and approval

A willmaker must know and approve all of the contents of a Will. It is not enough that the willmaker knows and approves of ‘the gist’ of a Will in giving most of their estate to a particular person – smaller, specific gifts must also be known and approved.

This requirement is to ensure that the text of the Will reflects what their actual wishes are in distributing their estate.

If there are suspicious circumstances surrounding the making the Will, then the person claiming that the Will is the last Will will be obliged to dispel the suspicion.

Undue influence

Undue influence is very difficult to prove because the bar is very high. It is not enough to show that someone pressured, cajoled or persuaded – the testamentary freedom of the deceased must have been compromised.

The person who claims that undue influence was exercised must show that someone forced the deceased to make a Will that does not reflect the deceased’s own testamentary intentions.

What can be done if a Will’s essential validity cannot be challenged?

Where the essential validity of the Will cannot be challenged, certain family members may be able to make a family provision claim on the estate. Where an application is made, the Court would need to consider whether the applicant is eligible to make a claim, and whether they have been adequately provided for from the deceased’s estate.

The FGD Estates team are specialists in providing advice on challenging a Will on the above grounds, and making family provision claims. If you seek advice on what your entitlements are in making such a claim, please do not hesitate to contact our Estates team by calling (02) 6181 2050.

Jessica Win, Paralegal

Article By Jessica Win, Graduate at FGD