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Challenging a Will

When making a Will you can dispose of your possessions in any way you wish but you should be aware that family members can challenge the validity of your Will. If they believe you were not capable at the time of making the Will or under pressure from others at the time or failed to make adequate provision for them they can apply to the Courts to have the Will changed.

In relation to the Willmaker's family maintenance claims, those people entitled to challenge a Will generally include grandchildren and de factos.

Although any of these persons could challenge a Will, they must have a reasonable prospect of success and the Courts will now look at the intent of the document as a Will rather than going by the strict legal correctness. This point would also apply where changes which may not be strictly legal in format have been made to a Will by the Willmaker – the Courts will make the intention of the Willmaker a priority rather than the content.

How do I challenge a Will?

There are several ways of questioning a Will's validity. Each requires legal advice from Martin Bullock Lawyers.

It may be claimed that the Will presented for the grant of probate was not valid on the grounds that:

  • It was not the last Will made by the deceased (testator).
  • The testator lacked the mental capacity to make a Will.
  • Parts of the Will were altered or made after it was signed.
  • The testator was unduly influenced, or tricked.
  • The Will presented to the court had been revoked.

If the Will is contested, then an application is made to the Equity Division of the Supreme Court and once the court decides, then a grant of probate is made.

Undue influence

Undue influence may be argued where a person who has helped someone to draw up a Will also stands to gain a great deal from it. This person may have to prove to the court that there was no trickery, pressure or force involved in the making of the Will. Flattery and persuasion are not unlawful as such, unless they overpower the judgement and wishes of the Will-maker, in which case undue influence will be found. Obvious persuasion may be regarded with suspicion by the court.

Interpreting Wills

Sometimes the contents of a Will are not clear, or a mistake has been made. If you wish to have a Will interpreted or a mistake rectified, then you must apply to the Equity Division of the Supreme Court. The executor, or a party interested in the estate such as a beneficiary, may apply to have the court determine what the Will-maker meant. The Wills, Probate & Administration Act gives the court the power to rectify a Will if it fails to express the Will-maker's intention.

The Family Provisions Act

The Family Provisions Act 1982 may be used to correct unfair treatment of dependants who are not properly provided for. It applies to those who were husband, wife, child, de facto spouse, former spouse, household member or grandchild to the deceased, and who have been wholly or partly dependent upon the deceased at some time during the lifetime of the deceased person.

The court bases its decision on proper provision for a person's maintenance, education or advancement in life. It considers circumstances at the date of the hearing, not the date of death, and takes community standards into account.

The court needs to be made aware of the applicant's relationship to the deceased and to the existing beneficiaries, the circumstances giving rise to the applicant's claim for relief and to the comparative claims of the existing beneficiaries as well as particulars of any acknowledgement by the deceased as to the applicant's claims on the deceased's estate.

The character and conduct of the eligible person before and after the death shall also be taken into consideration, as well as any contribution made by the eligible person towards the deceased's property or welfare.

Action is commenced by an Originating Summons in the Supreme Court and the applicant is required to file a detailed affidavit setting out his/her age, occupation and marital status, particulars of the deceased's death and age at the time, particulars of any Will, a brief statement of the estate assets, and details of the applicant's relationship to the deceased and of the circumstances establishing his or her claim to be provided for.

The Family Provisions Act requires that a claim be made within eighteen months from the date of death of the deceased. The time can be extended if sufficient cause for the delay can be established and provided the beneficiaries under the Will would not be unacceptably prejudiced by such extension and depending on whether there has been any unconscionable conduct on either side which is relevant to the claim.

Costs

The costs of the application are not automatically payable by the estate. The making of an order for costs will be decided by the court. Martin Bullock Lawyers should be consulted in order to properly advise and protect the applicant, as the costs of frivolous claims may be awarded against the applicant.

Alternatives to court

Martin Bullock Lawyers will advise you about alternative dispute resolution (ADR) and explain that it can be used instead of, or at the same time as, litigation, and will generally cost less. Martin Bullock Lawyers will be able to advise you of the different ADR processes, which include mediation, conciliation, negotiation, independent expert appraisal and various forms of arbitration.