Challenging A Will in the ACT - Armstrong Legal

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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Challenging a Will

In the ACT, when you challenge a will you are challenging the validity of the Will itself. A challenge to a Will is often for these main reasons: Undue Influence, Fraud, Forgery, or lack of Mental Capacity (referred to as testamentary capacity).

Our team practices exclusively in Wills and Estates Law and are here to guide you through the process to the best possible outcome. If you are considering challenging a will, or if you have a question, we encourage you to call us on 1300 038 223 for a free initial case assessment.

Each State of Australia has a different set of rules which apply when challenging a Will. If the deceased died in the ACT, owned assets in the ACT or a Grant of Probate is sought in the ACT, the information below may be relevant.

How to challenge a will in the ACT

If you wish to challenge a Will in the ACT, Court proceedings need to be commenced.

The first step is to find out if there has been a grant of Probate. This can be done by telephoning the Supreme Court of the Australian Capital Territory to enquire whether and application for Probate has been made and if so, whether Probate has been granted.

If you wish to prevent Probate being granted, you should consider filing a Probate caveat. Filing a Probate Caveat means that the Court will not grant Probate until:-

  • The parties agree to remove the caveat; or
  • An order is made by the Court.

Unless you can reach an agreement with the parties involved about removing the caveat and the Will validity, one of the parties will have to start Court proceedings. If Court proceedings are commenced, a Judge will determine the outcome.

If you are arguing that the Will is valid, usually you will be the one to commence Court proceedings and you will need to set out the reasons why you say the Will is valid to the Court.

The defendant will then file a Defence in Court which explains why the Will is invalid.

All the parties then prepare evidence through documents in support of their case in the form of affidavits. These documents (affidavits) are filed with the Court.

A Judge will ultimately review all of the evidence and decide the outcome of the proceedings.

How long can a will be challenged?

Generally speaking, there is no time limit for challenging a will.

A will can be challenged for the following reasons:-

  • Fraud;
  • Lack of knowledge and approval;
  • Forgery;
  • The person who made the will lacked testamentary capacity;
  • Undue influence.

You can challenge Probate after it has been granted.

However, if you wish to challenge a Will, we recommend that you bring the challenge as soon as possible.

The reason for this is that if Probate has been granted, you have a greater burden to:-

  • prove the reasons why the grant of Probate should be revoked; and
  • explain why you did not prevent Probate being granted.

On the other hand if you wish to contest a person’s will there is a time limit. Contesting a Will refers to making a family provision application. A family provision application is an application for provision or further provision from the deceased’s estate.

In the ACT, a Will must be contested within 6 months from the date Probate is granted. This means a family provision application must be made within 6 months from the date Probate is granted.

Please call one of our lawyers if you wish to challenge or contest a Will in the ACT.

Who can Challenge a Will in the ACT?

In the ACT, you can challenge a Will if you have an “interest” in the estate of the deceased person.

Unless you have an interest in the deceased’s estate, you are not entitled to challenge the validity of a Will in the ACT.

What is an “interest” in the deceased’s estate for the purposes of challenging a Will?

This means that you are:-

  1. A beneficiary in a prior Will of the deceased; or
  2. Entitled to a share of the deceased’s estate under the laws of intestacy in the ACT. Intestacy is the situation where the deceased dies without a Will.

Grounds for Challenging a Will

In the ACT, the most common grounds or reasons for Challenging a Will are as follows:-

  1. The person who made the Will lacked testamentary capacity;
  2. There was undue influence;
  3. The Will is a forgery;
  4. There is fraud involved;
  5. The person who made the Will did not know and approve of the contents of the Will;
  6. Making a family provision claim (often referred to as Contesting a Will).

Please find further details on the grounds for Challenging a Will below.

  1. Lack of Testamentary Capacity

A Will is invalid if the person who made the Will lacked testamentary capacity, that is mental capacity when they made it.

There is case law which establishes the test for whether a person has testamentary capacity. Generally speaking, a will-maker must satisfy the following at the time they make their Will:-

  • They understand that they are making a Will;
  • They recall their property in general terms;
  • They understand who may have claims on their estate; and
  • They are not affected by a delusion (meaning that if they were of sound mind, the Will would not have been made).

If you have concerns about the validity of a Will due to the capacity of the will-maker, contact one of our experienced lawyers and we will discuss your concerns with you.

  1. Undue Influence

Another way to challenge a Will is if you can prove that the person who made the Will was unduly influenced. If there has been undue influence, the Court will declare that the Will is invalid.

It is extremely difficult to prove undue influence. If there has been persuasion, this is insufficient to prove undue influence. There must be evidence that the Will maker was coerced. For example a threat could constitute undue influence or duress.

If you believe that your loved one has been unduly influenced into making a Will, please contact one of our lawyers.

  1. Forgery

A Will can be challenged in the ACT if it is a forgery.

To prove that the Will is a forgery, you require evidence that either someone else made the Will or someone else signed the Will.

If you suspect that a Will is a forgery, please contact our experienced team to discuss.

  1. Fraud

Another reason for Challenging a Will in the ACT is if fraud is involved.

In order to establish fraud, you need evidence to present to the Court that fraud was committed.

An example of fraud would be if a beneficiary commits fraud to receive an entitlement under the Will. You must prove that the beneficiary committed fraud solely to receive a benefit under the Will and the fraudulent conduct directly impacted the making of the Will.

  1. Knowledge and Approval

If the person who made the Will did not know and approve of the contents of the Will, the Court may declare the Will invalid.

There is a presumption that the person who makes a Will, knows and approves of the contents. To prove otherwise you need to establish that the Will maker did not know and approve the contents of the Will.

If you are aware of any suspicious circumstances which make you question whether a Will maker knew and approved of the contents of a Will, please call one of our lawyers to discuss.

  1. Family Provision (or Contesting a Will)

You may be eligible to Contest a Will by bringing a family provision claim. For more information regarding contesting a Will, see our contesting a Will in the ACT page.

For further details regarding the grounds or reasons for challenging a Will in the ACT, please call one of our experienced lawyers on 1300 038 223.

Cost of challenging a will / who pays to challenge a Will?

A Judge has the power to make orders as to who is to pay the costs of challenging a Will.

If a party is successful, generally the Judge may order that the other party pay their ordinary costs. Ordinary costs are usually a percentage of your actual costs and they are not always the entire amount of your costs. Therefore if you lose, a Judge may order you to pay the other party’s ordinary costs.

Sometimes the parties may argue as to the amount of ordinary costs to be paid. If the parties cannot agree as to the amount of ordinary costs to be paid, then you can apply to the Court to have the costs assessed.

It may take some time to have your costs assessed, however, if an agreement cannot be reached as to the amount of ordinary costs, then this may be the way to proceed.

If you would like to discuss the costs of challenging a Will, please call one of our lawyers on 1300 038 223.

Challenging Caveats in the ACT

If you are challenging the validity of a Will in the ACT, you may file a caveat to prevent Probate being granted. This caveat is known as a Probate caveat.

Please note that this caveat differs to a property caveat.

There are two types of caveats. These are:-

  1. Property Caveats; and
  2. Probate Caveats.

A property caveat is a caveat on real estate and ordinarily has nothing to do with Wills and Estates matters. If you are challenging a Will, you are not usually permitted to file a property caveat.

Whereas a Probate caveat, prevents a grant of Probate being made.

If you are an interested person and wish to challenge a Will, you may be able to file a Probate caveat. By filing a Probate caveat, you are preventing a grant of Probate being made.

The caveat can be removed if the parties reach an agreement. However if the parties cannot reach an agreement, you may apply to the Court to make an Order and the Judge will decide on the issue.

All the parties to the dispute will then prepare their evidence which is filed with the Court and the Judge will make a determination.

If you require assistance with preventing a grant of Probate and filing a caveat, please contact our office.

Challenging an executor of a Will

Generally beneficiaries have no say while the estate is being administered.

In effect an administrator “owns” the estate assets during the administration process. What this means is the administrator personally has control over the estate assets while they are being administered.

A beneficiary does not have any rights until an estate is to be distributed and an executor or administrator has administered the estate.

Once an estate has been administered, a beneficiary may request that the administrator provide estate accounts. An application can be made to the Court if the administrator does not provide the estate accounts.

When estate accounts are provided, a beneficiary can check them to determine if an estate has been correctly administered. A beneficiary can apply to the Court for redress if there is a dispute regarding how an estate has been administered.

There may be redress available if a beneficiary has evidence that an administrator has:-

  • committed fraud;
  • been grossly negligent during administration or
  • been dishonest and favoured themselves above other beneficiaries,

A beneficiary can apply to the Court seeking an order which prevents the administrator from administering the balance of the estate. Such a beneficiary may also seek an order that the grant of Probate or administration be revoked, however this is only in extreme cases.

Executors may apply for a commission. Generally, executors may only receive commission by Court order or if the beneficiaries agree. A beneficiary may ask a Court to consider whether or not an executor is entitled to commission.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

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