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What Happens If A Will Is Not Valid?

In Australia, there are legislative provisions in place to allow someone to challenge the legitimacy of a will. Both state legislation and common law principles allow an eligible person who believes that a will is not valid to dispute the will before the region’s Supreme Court. A will may be found invalid if it was fraudulently created or if the testator was unduly influenced to draft the document in a particular way. A major concern for the court is whether the testator actually had the testamentary capacity that is necessary to write a will. This article explains what happens if a will is not valid in Australia.

When Is A Will Invalid?

The Supreme Court may invalidate a will under the following circumstances:

  • The will fails to conform to the legal requirements for a valid will. For instance, if the testator has not signed the will or had their signature witnessed by independent witnesses, then there is reason to question the validity of the will.
  • The testator did not have the necessary testamentary capacity to draft a will. A testator suffering from dementia or mental illness may not have the requisite cognitive capacity to determine the distribution of their estate.
  • Someone improperly influenced the testator to draft the will in a particular way. This is particularly pertinent for elderly and/or vulnerable testators who are pressured by a person to make a will in their favour.
  • The will is a forgery or fraudulently created. Common signs that a will is a forgery include when a testator’s signature is not witnessed, or the testator’s signature does not match legitimate examples, the will contains errors that the testator would not make, or the beneficiary is a person that the testator would not have chosen.
  • There are additional grounds to invalidate the will.

Who Can Challenge A Will When It Is Not Valid?

Those who have an interest in a deceased estate have the right to challenge a will. In practice, those with an interest are usually anyone named in a deceased’s prior will or who is legally entitled to inherit under intestacy laws. Typically, these laws privilege the right of the next of kin to challenge a will.

Filing A Probate Caveat

The first step for someone who intends to challenge a will is to lodge a probate caveat with the relevant Supreme Court Registry. A claimant will then have an opportunity to file a notice outlining evidence to support their challenge. A probate caveat notifies the court that there is a problem with the will, and effectively stalls the process of granting probate until the challenge is heard, the caveator withdraws the caveat or a court order overrides the caveat.

A hearing will be held to weigh the validity of the will, with the executor defending the will and the caveator providing evidence of the will’s invalidity. If the court finds the challenge unconvincing, they will set aside the caveat and grant probate to the executor. In the event that the court finds that the challenge is spurious, they may order the caveator to reimburse the estate for the costs of the proceedings.

Challenging An Invalid Will After Probate

A will can be challenged before or after probate is granted. After probate, an executor is empowered to administrate the deceased estate, but they will not distribute the bequests until the limitation date had passed. When a will is questioned, the Supreme Court can order an executor to surrender their Grant of Probate and reapply for a Grant of Probate in Solemn Form. A hearing will then be held to consider the challenge to the will.

What Happens If The Court Finds That The Will Is Not Valid?

When the court rules that a will is not valid, they usually also make an order as to what happens to the deceased estate. If there is an older valid will, the court will order that this will is validated, and the executor will administrate the estate according to the terms of the older will. If the testator died without leaving another will, they are said to have died intestate, and the deceased estate will be distributed according to the relevant intestate succession law.

In the event that the will is not valid and the testator dies intestate, what happens next depends on the specific conditions of the intestacy legislation in the jurisdiction. Typically, intestacy law in Australia privileges the next of kin of the deceased, firstly a spouse or de facto partner and then children of the deceased.

The Armstrong Legal contested wills team can advise you on what happens if a will is not valid in Australia. With their extensive experience with all wills and estate matters, our solicitors are well placed to help you gather evidence of invalidity and assist you with filing a probate caveat. They can also represent you before a court hearing to argue your case on the invalidity of the will. Please contact our offices to make an appointment, or call 1300 038 223 to discuss your legal needs.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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