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How to Challenge a Will - Australian Probate

Our litigation lawyers only deal with disputed wills and contested probate.

There are many reasons why a potential beneficiary may want to find out how to challenge a will. What follows is a general guide only and should not be considered as a substitute for obtaining definitive information from a solicitor about contested wills and disputed probate. When someone dies, friends and relatives may be surprised and in many cases disappointed or distressed by the disposal of the assets of the deceased. The law in Australia regarding disposal of assets upon death is reasonably liberal subject to existing family and dependants legislation and there is almost unfettered choice about who can be a beneficiary and the amount they can receive. A potential beneficiary can only challenge a will by disputing or contesting probate, if it is invalid or if certain classes of people have not had proper financial provision made for them, when it would be equitable and reasonable to do so.


Is the Will Valid?

The law sets out strict rules about the testator and how the document should be executed, that is how it should be witnessed and signed. Failure to comply with these regulations can result in a potential beneficiary starting legal action to challenge the will. If the formalities have not been dealt with properly, the document may be deemed to be invalid by a court of law, ensuring either that an earlier will takes precedence or in the case where there is no previous will, the rules of intestacy will determine the allocation of any assets. It is possible to challenge a will in a court of law if the legal requirements have not been satisfied :-

  • the person making the will must be aged over 18 years
  • the will must be made without undue influence from another person
  • the will must not be made under threat or duress
  • the person making the will must be of sound mind and fully understand its content
  • a challenge can be mounted if a later will is found
  • the witnesses must sign together in the presence of the person who made the will
  • a witness who is a beneficiary will lose any inheritance


Family Legislation

This type of statute intrudes upon testamentary freedom and the testator’s right to leave assets to whomsoever they chose. Certain classes of potential beneficiaries may often challenge a will on the basis that they should have had adequate financial provision made for their wellbeing. Any eligible person can challenge a will but there are time limits, subject to the courts discretion. Those who may apply usually include close relatives, cohabitees and dependents. Financial provision may often be made for maintenance, education or advancement in life. It is worth noting that there are provisions in force to deal with gifts made by the testator prior to death with the intention of defeating the rights of a bone fide applicant.


Lost or Destroyed Wills

This can be a very thorny topic, causing serious rifts within families, which results in many cases of legal action to challenge a will. It is often the case that a disenfranchised relative, who is first on the scheme after death, destroys a properly executed will, hoping that an earlier will or the intestacy rules will provide them with an inheritance. The basic rules are that a will that has been lost or accidentally destroyed or damaged is still valid and it may be possible to rely on a copy following application to a court of law. If on the other hand the testator has deliberately destroyed the document with the intention of revoking it by destruction then it is of no further consequence even though there may be copies in existence. The effect of destruction by a testator with the intention of revocation is that a previous will may then take precedence or where there is none, the intestacy rules may thereafter dictate the allocation of assets and where there are no qualifying relatives under the intestacy rules, the entire estate may be forfeit to the state.


The Legal Process

To challenge a will it is necessary to issue a summons a court of law. There are time limits to court procedures and qualified legal advice should be sought from a solicitor as soon as possible. Your lawyer will be able to take legal action including applications for caveats and injunctions that will prevent the estate from being distributed until the matter has been heard by a judge who will determine the issues. The application is started by submission of a detailed affidavit of facts sworn by the applicant. It is therefore essential that all potential claimants keep a full and detailed written record of all events pertinent to the claim to assist in presentation of the case. Legal action to challenge a will is, in common with all other court proceedings, won or lost on the quality of the evidence presented to the court.

Our litigation lawyers only deal with disputed wills and contested probate.


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