On what grounds can a Will be contested?

A person is entitled to distribute their assets by way of a will, generally as they please. The courts however, have the power to vary gifts in a will, provide benefits for persons omitted from a will or declare an entire will invalid.

Queensland law allows family members, dependents and sometimes relatives, to challenge the will if they feel they have been overlooked or inadequately provided for. Disputed wills are becoming increasingly common.

We are here to help you make decisions regarding this process and if a challenge proceeds, to make it easier for you. If you are require further information regarding will disputes, please call us on 1300 580 413

Grounds for challenging a will

What are the challenges to a will that can be made?

A challenge to a will may arise from one or more of the following:-

  1. Family members and dependants should have been adequately provided for.
  2. The formal requirements for making and amending a will must have been observed.
  3. The will must genuinely reflect the will maker’s last testamentary intentions.
  4. The will maker must have had legal capacity at the time of making it.
  5. The will must not have been the product of undue influence exerted by another person.
  6. An agreement by a will maker to provide a benefit to a person can be enforced against their estate if the person receiving the benefit has provided valuable consideration.
  7. Each provision in a will must precisely achieve the intention of that provision.

For Family members or dependants 

For Executor 

Family Provision

Challenge by overlooked family member or dependant or for share (or increased share) in estate because of being inadequately provided for.

The law allows family members or dependants who have been overlooked or inadequately provided for in a will, to bring a lawsuit for estate allocation to them. Typically these claims come from a child, spouse, former spouse or certain dependants left out of a will or a beneficiary wishing to challenge the fairness of the gift allocated to them.

Written notice must be given to the executor within six (6) months and legal action commenced within nine (9) months of the date of the deceased’s death. The contest can be resolved by agreement but if not, is determined by a court. Factors that the court will consider when determining if the applicant has a valid claim include:

  • the relative financial positions of the parties;
  • relationships between the deceased and all potential beneficiaries;
  • the size of the estate;

The application must be supported by a detailed affidavit setting out the history and all relevant facts.

For Family members or dependants 

For Executor 

Validity of will or amendment

​​​Challenge to entire will or a provision within it because of informality or non-conformity with will-making rules.

Handwritten or interlineated alterations to a will or other testamentary disposition codicil should raise a red flag as to “validity”. Likewise any irregularity as to the signing of each page of the will or the absence of either witness’s signature on any page. An executor or beneficiary who is concerned about the above may apply to the court for that issue to be determined on evidence.

For Family members or dependants 

For Executor 

Testamentary intentions

Challenge to will on basis that an earlier will more correctly reflects the testator’s genuine intention

A hasty revision of a will to remove a beneficiary motivated by spite or paranoia might not reflect the will maker’s genuine testamentary intention. Such wills can be the subject of a requirement that they be proved in solemn form, in which case the executor must satisfy the court on evidence, of that requirement.

For Family members or dependants 

For Executor 

Capacity

Challenge to validity of will due to testator’s mental condition at time it was made

Persons with diminished mental acuity eg with dementia, lack legal ‘capacity’ and can only make a valid will (or vary one) during a medically certified “lucid” period.

To have capacity, the testator needs to know what a will is, what their property is and the people that have a reasonable claim to the estate.

The best defence against a claim that an aged or infirm testator lacked the requisite legal capacity, is a detailed assessment made by a solicitor of the factors that are required to establish the capacity to make a Will, supported by a medical certificate addressing that capacity at the time the Will was made.

If incapacity is alleged, the will must be proved in ‘solemn form’.

For Family members or dependants 

For Executor 

Undue influence

Challenge to a benefit to a person whose influence on the will-maker directed the giving of a benefit to that person.

Wills can be challenged if they are made under the influence of an overbearing relative, friend or advisor. This usually occurs when there is an imbalance of power in the relationship, where the weaker party agrees to the more dominant party’s desires contrary to their wishes. A full examination of all the circumstances under which the will or codicil was made is required.

The exercise of undue influence is a matter of evidence and can not be established by suspicion alone.

For Family members or dependants 

For Executor 

Testamentary agreement

Claim that will-maker agreed to grant a person a testamentary benefit in consideration for services performed during their life time

A documented agreement to provide a benefit for a person’s estate, for example to a companion for the provision of services in the person’s lifetime, is enforceable even if the will omits the gift.

Likewise an agreement to make mutual wills. Disputes sometimes occur in blended families if one partner changes their will after the death of the other, thereby depriving the children of the first deceased partner any benefit from their parent’s estate.

If such agreements are not formally documented, disputes may be difficult to resolve. An executor is entitled to be presented with satisfactory evidence as to the existence of the agreement and that the person claiming the benefit provided the services claimed to have been provided.

For Family members or dependants 

For Executor 

Defective will drafting

Claims to void will or a provision within it due to poor drafting of the will

Sometimes beneficiaries do not receive what they were expecting or what the deceased intended because of the way a will was drafted or a technical error of expression.

Executors should exercise caution where there is ambiguity as to the description for any particular bequest, especially residences, jewellery and objets d’art.

Failure to specify in a will that the rule of ademption does not apply may lead to disputes concerning the unintended consequences of an inter vivos disposal.

For Family members or dependants 

For Executor 

What fees can I expect to pay?

If you are a proper claimant, often the estate is generally required to reimburse you for your legal fees in making a claim for family provision or other dispute of a will. The fees for our services will vary from case to case depending on the particular circumstances. The best way to get a fee estimate is to contact us.

What if I live interstate?

The law relating to compliance with the rules for making a will, is the law of the State in which the will was made. The law relating to the administration of the estate is that of the State in which the grant of probate or letters of administration is issued, but for any assets of the estate located in a different State or Country they can be affected by the laws of that other jurisdiction as well.

If a will made in NSW relates predominately to assets in Queensland, the executor or administrator may prefer to apply for probate in Queensland in which event the law of that state will apply to its administration.

Start the Process

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