Grounds for Challenging A Will
It is more common to find that Wills are being challenged on the basis that they are not valid.
In these cases, the question is whether the Will is the last Will of a free and capable testator. While this is a short statement, it captures a lot.
A challenge could be mounted because the person:
- did not have testamentary capacity to make the Will;
- was subjected to undue influence when they made the Will;
- did not make the Will at all and there is evidence that the Will is a forgery; or
- did not truly know and approve the contents of the Will.
If any of these grounds could be made out then the whole Will would be treated as having never been valid.
If you think a Will is valid but think you should have received more then you should see our page on contesting a Will
If have any questions about Challenging a Will in any Australian state or territory please contact us.
Challenging a Will Generally
Do the laws vary in this area from state to state?
Generally, no. The law in this area is common law, which means it applies Australia-wide.
Someone has just died and I have questions about their Will. What should I do first?
If you believe a Will is not valid, then the first thing you should do is to seek information from the executor or the solicitor who made the Will.
If you are unable to get that information or are worried that someone may obtain a grant of probate, you should file a caveat to protect you position. You should ensure you have preliminary case before you take this step.
How long do I have to challenge a Will?
A Will can, within reason, be challenged at any time.
A grant of probate is generally an administrative order made by the Registry of a Supreme Court. It is said to be a grant in common form.
A grant in common form is always revocable and, provided you act with reasonable haste after discovering the issue, a Court will be willing to hear your case to revoke a Will sometime after the person’s death.
For example, the NSW Supreme Court has ordered the revocation of a grant and a grant of probate of an earlier Will where the death happened and the estate had been entirely administered some two years earlier.
How do you challenge a Will based on testamentary capacity?
In order for a person to have testamentary capacity they must:
- understand what a Will is and what it does;
- understand the nature the nature and extent of their assets;
- understand the people they should benefit and be able to balance their subjective needs; and
- not suffer from a delusion that affects their testamentary decision-making.
The person must not fail any of these tests or the whole Will would be invalid.
How do you challenge a Will based on knowledge and approval?
Challenging a Will based on knowledge and approval requires that the person did not properly understand the terms of the Will they signed or did not approve the contents.
If there are suspicious circumstances surrounding the creation of the Will then this places an onus of proof on the person who says the Will is the last Will to dispel those suspicions. It could be that the person did not speak English and the Will was not translated, or it could be that the solicitor who made the Will is connected to the person who now gets more from the new Will.
This can, depending on the circumstances, be a difficult onus to shift.
How do you challenge a Will based on undue influence?
This is a difficult test to meet.
The test requires that you are able to show that the will-maker’s freedom was overborne. It is not enough to show that they were pushed, pressured cajoled or persuaded if the person was still able to express their own judgment.
Who can challenge a Will?
A Will can be challenged by anyone who has an interest in the last Will or a previous Will of the deceased.
Will the estate pay my costs for challenging the Will?
Where a challenge is appropriate and has been made in circumstances that justify a challenge you can ordinarily expect that the Court will order that the costs of the challenge be paid by the estate.
However, this is always a discretion of the Court and you cannot rely on the Court making such orders.
Some firms offer no win, no fee. What does that mean?
A ‘no win, no fee’ agreement is known as a contingent costs agreement and the devil is in the detail.
The terms of these agreements will generally provide that you only pay if you are successful. However, you tend to lose some control about how your claim is managed, you still need to pay any barrister’s costs and any filing fee, and ‘successful’ may be defined any settlement in your favour (even if it is small).
We approach this differently. Where client struggle to meet the upfront costs of litigation but have a good claim we are willing to consider entering into a deferred costs agreement which provides that you will only need to pay when the matter is concluded.
We are specialists in estate litigation, so you can be confident that with our assistance you will get the best possible outcome.