Challenging a Will
In the ACT, when someone dies and leaves behind a will, a person with an interest in the deceased estate may challenge or content that will. When a person challenges a will, they are arguing that the will is not legally valid and so probate should not be granted. This is quite different from contesting a will. When a person contests a will they are arguing that the terms of the will are unfair and do not adequately provide for someone close to the deceased. This page deals with challenging a will in the ACT.
Grounds for challenging a will
A challenge to a will can be made on one or more of the following grounds:
- Undue influence
- Lack of knowledge and approval
- Lack of mental capacity (referred to as testamentary capacity).
Each of these grounds is explained in more detail below.
Process of Challenging A Will In The ACT
If you wish to challenge a will in the ACT, the first step is to find out if there has been a grant of probate. This can be done by telephoning the Supreme Court to enquire whether an 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 other parties involved about removing the caveat, one of the parties will have to start court proceedings. If court proceedings are commenced, a judge will determine the outcome.
The party who is arguing that the will is valid is usually the one to commence court proceedings. They will need to set out their reasons for arguing that 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 affidavits in support of their case, which are filed with the court.
A judge will ultimately review all of the evidence and decide the outcome of the proceedings.
Generally speaking, there is no time limit for challenging a will. A person can challenge a grant of probate after it has been issued. However, if you wish to challenge a will in the ACT, 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 a person wishes to contest a will in the ACT, this must be done within six months of the date probate is granted.
Who Can Challenge A Will In The ACT?
In the ACT, a person can challenge a will if they have an interest in the estate of the deceased.
A person has an interest in a deceased estate if they are:
- A beneficiary in a prior will of the deceased; or
- Entitled to a share of the deceased’s estate under the laws of intestacy in the ACT.
Grounds For Challenging A Will
In the ACT, the most common grounds or reasons for challenging a will are as follows:
- The person who made the will lacked testamentary capacity;
- There was undue influence place don the will-maker;
- The will is a forgery;
- There is fraud involved;
- The person who made the will did not know and approve of the contents of the will.
Lack of testamentary capacity
A will is invalid if the person who signed it lacked testamentary capacity. In other words, the testator lacked the mental capacity to understand the significance and implications of what they were doing.
Case law has established 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 testamentary capacity of the will-maker, contact one of our experienced wills and estates lawyers and they will discuss your concerns with you.
Another ground for challenging a will in the ACT is on the basis that the person who made the will was unduly influenced. Undue influence exists where a will-maker is essentially coerced into making a will that does not reflect their true wishes. If there has been undue influence, the court will declare that the will is invalid.
It is, however, 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 made to the will-maker if they did not make their will in a certain way could constitute undue influence.
If you believe that a person was unduly influenced into making a will, please contact one of our lawyers.
A will can be challenged in the ACT on the basis that it is a forgery. To prove that a will is a forgery, you will need 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.
Another ground for challenging a will in the ACT is if fraud is involved. A common example of fraud in the making of the will is where a beneficiary forges the testator’s signature on the will. Another example of fraud if where a beneficiary hides or destroys a later will made by the testator so that an earlier version of the will is treated as their last will.
In order to successfully challenge a will on the basis of fraud, a person must demonstrate that a beneficiary committed to receive a benefit under the will and that the fraudulent conduct directly impacted the making of the will.
Knowledge and approval
If the person who made a will did not know and approve of the contents of the will, the court may declare the will invalid.
There is a presumption that a person who makes a will knows and approves of its 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 their will, please contact one of our lawyers to discuss.
Cost Of Challenging A Will
A judge has the power to make costs orders determining who is to pay the costs of challenging a will.
If a party is successful in their challenge, generally the judge will 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.
If the challenging party is unsuccessful, the judge may order them, to pay the other party’s ordinary costs.
Sometimes the parties may dispute the amount of ordinary costs to be paid. If the parties cannot agree as to the amount of ordinary costs to be paid, then an application can be made to the court to have the amount of costs assessed.
It may take some time to have your costs assessed by the court; however, if an agreement between parties cannot be reached, then this may be necessary.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.