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Contesting a Will Solicitors - Australian Probate Lawyers

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Despite what is written in a will, it may be possible to challenge the distribution set-out in the will, or even challenge the validity of the will itself. If you have been left out of a will or you believe that your share of inheritance is unfair, you may be able to legally contest the will under certain circumstances.

Our Australian will dispute lawyers specialise in contesting wills, contesting probate, family provision, and estate litigation. If you would like to challenge or contest a will, you should seek legal advice from a specialist lawyer in your State or Territory. Our will contest lawyers operate Australia-wide. Call our free helpline or complete the online contact form to receive obligation-free legal advice. No Win No Fee legal representation is also available.

Grounds for Contesting a Will

A will may be contested if:

  1. The will maker has failed to make adequate provision for a person to whom they owed a responsibility.
  2. The will failed to comply with the necessary legal formalities required for the preparation of a valid will.
  3. The will itself is invalid. Grounds for invalidity include: the person lacked the necessary testamentary capacity; the will was made as a result of undue influence or duress exerted over the will maker by another; fraud.

Lack of Provision

There is a basic principle at law that a will maker (testator) has the right to leave their estate to whomever they like, subject to legislative provisions in each State and Territory which enable the courts to interfere with this freedom in certain circumstances.

A court can order that further provision be made from the estate where the distribution contained in the will fails to make adequate provision for the proper maintenance and support of certain people. These people include spouses, children, and in some jurisdictions this responsibility can extend to unrelated people who were in a close domestic relationship with the testator.

When considering whether to grant a greater share of the inheritance to an aggrieved party, the court will consider:

  • The length of the relationship with the aggrieved person.
  • The size and nature of the estate.
  • The age of the aggrieved person.
  • The financial resources and needs of the aggrieved person, and the needs of the other beneficiaries of the estate.
  • Any contributions made by the person to the building up of the estate.
  • The physical, mental or intellectual disability of the person or any other beneficiary.
  • The relationship between the testator and the aggrieved person. If the person was dependant on the will maker, then it is more likely that the court will find that the will maker had a responsibility or obligation to provide for them.

If you were estranged from the family member/testator and the testator purposely excluded you from the will, you may still be able to challenge the will.

Invalidity of a will

A will's validity can be challenged on the grounds of :

    Undue Influence - Mere persuasion or suggestions as to how an estate should be distributed is not considered to be 'undue influence'. The influence must be 'undue' in the sense that another person interfered with the testator's freedom to make their will, in that the testator was coerced into making a will that did not represent their true intentions.

    Fraud - A will that is the result of fraud is invalid. For example, a will is prepared by a third party and the will maker's signature is forged on the document. Another example is a will maker who signs a will wrongly believing it to be some other document.

    Testamentary Incapacity - To have the capacity to make a will means that the testator understands the nature of the will and its effect; the extent of the property to which the will relates; and the people to whom the will maker has an obligation to make provision. Mental illness, dementia and drug use can interfere with testamentary capacity.

    Formalities - A will may be declared invalid if it does not comply with certain legal requirements regarding the age of the will maker, signatures and witnessing.

If you have doubts about the validity of the will, you need to raise these doubts before probate of the will has been granted. Once the will has been proved and probate granted, the validity of the document is assumed. Therefore to challenge a will's validity you need to see a solicitor before probate is granted, and a solicitor can take steps to lodge a caveat on the will. A caveat will prevent the grant of probate being made until such time as the circumstances surrounding the preparation of the will have been determined.

Time Limits

A challenge to a will must be brought within a specified time period. Each State and Territory in Australia has a different time limit, and it is best to seek advice from a solicitor as soon as possible after the death of the testator.

If an application to challenge a will is not made within the specified time limit, an application can be made to the court for an extension of the time within which to make the claim. However a number of issues need to be proved before an extension of time will be granted (eg there must be a very good reason for the delay), and part of the estate must remain undistributed. It is very difficult to be granted an extension of time, so the best thing to do is to not delay in seeking legal advice- soon after a testator has died and you have concerns about your share of inheritance, speak to a solicitor straight away.

No Win No Fee

Our Australian solicitors may be able to handle your will contest matter on a No Win No Fee basis (or contingency cost agreement). If you would like to find out more, call our helpline or complete the contact form and a member of our legal team will respond to your enquiry as soon as possible.

LAWYER HELPLINE: ☎ 1800 455 260