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Disputing a Will

When someone dies, it is not unusual for a family member to consider disputing the terms of the will. In Australia, there are two ways of disputing a will, used in different circumstances. The first circumstance is when someone wants to dispute a will on the basis that it is not valid, which is done through a process of “challenging” the will. The second is when someone wishes to dispute a valid will on the basis that it has not left adequate provision for them, which is done by “contesting” the will. The process for disputing a will through challenge or contest differs somewhat throughout different Australian jurisdictions because the law governing wills – called succession law – is state-based. This article offers a general overview of disputing a will, but a solicitor with expertise in the particular jurisdiction should be consulted by anyone planning to contest or challenge a will.

Disputing the Validity of a Will

The validity of a will can be disputed if the formalities of a will have not been appropriately completed. For instance, there may be a challenge on the basis that the testator has not signed the document, and/or that two independent parties have not appropriately witnessed the will. A challenge can also be made on the basis that the deceased did not have the mental faculty to make a will, otherwise known as lacking testamentary capacity. Someone can also challenge the will if they produce a more recent valid will, or prove there was a fraud, undue influence, or forgery in the production of the will. It is important to note that even if a will fails to comply with all formality, a court may still order the administrator of the estate to follow the wishes expressed in the will.

Who Can Dispute the Validity of a Will?

The validity of a will can be challenged by anyone who is a beneficiary of the current will, or anyone who was named as a beneficiary in a previous will. In addition, anyone who is eligible to inherit under intestate legislation in the particular jurisdiction has standing to dispute the will. This chiefly includes spouses and children of the deceased, or where there is no spouse or children, anyone who is a direct relative.

How is a Will Challenged?

The first step in disputing a will on the basis that it is invalid is to establish whether probate has been granted. This can be determined by contacting the Supreme Court in the relevant jurisdiction.  It is also possible to file a Probate Caveat, which will prevent the court from issuing a Grant of Probate until the parties agree to remove the caveat or the court makes an overriding order.

A challenge can be made to the validity of a will before or after a Grant of Probate has been issued. However, it does become more difficult to successfully challenge the validity of a will once an executor begins to distribute the estate.

Disputing the Provisions of a Will

There is also a way to dispute a valid will. Certain people are eligible under state and territory legislation to contest a will when they feel they have not received adequate provision. It is necessary for the person contesting the will to demonstrate that they are in financial need and that the testator had a moral responsibility to make greater provision in recognition of that financial need. Factors that will be significant include the current and future financial needs of the applicant, and the relationship between the person disputing the will and the testator. The court will also consider the extent of the moral obligation of the deceased to support the applicant, and the provision made for other beneficiaries in the will.  The court will be focused on the question of what a “reasonably minded testator” would do in the circumstances to make provision for the individual.

Who is Eligible to Contest a Will in Australia?

The legislation that governs disputing a will specifies who has standing to contest a will. In every state and territory, the spouse and child of the deceased can contest a will, and in some jurisdictions other direct family members also have standing. As an example, in some locations, a sibling is eligible to contest a will, while in other jurisdictions a sibling can contest a will only if the testator has financially supported the sibling before their death. In fact, a will can be disputed by anyone who has previously been financially dependent upon the deceased, including an ex-spouse or ex-partner, even if there was previously a formal separation and division of assets.

For more information on disputing a will through challenging or contesting the estate, or for any other legal advice or support, please call Armstrong Legal on 1300 038 223 or send us an email to make an appointment.

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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