Challenging a Will
In South Australia, a person can challenge the validity of the will of a deceased person if they have an interest in the deceased estate. A will is challenged if there is a possibility that it is not legally valid. This could be for a range of reasons. This page deals with challenging a will in South Australia.
Who can challenge a will?
A person has standing to challenge a will if they are:
- a beneficiary under the will;
- entitled to a share of the deceased’s estate under a previous will of the deceased;
- a person who would be entitled to a share of the deceased’s estate under the laws of intestacy in South Australia.
Grounds for challenging a will
There are a number of grounds on which a person may challenge a will in South Australia. These include the following.
In order for a will to be valid, the testator must have had testamentary capacity at the time of making the will. If there is doubt that the testator understood the significance and implications of the will, this may lead to the will being challenged.
In Banks v Goodfellow (1870) 5QB 549 at 565, the court outlined the criteria for assessing one’s capacity to make a will. The following four conditions must be satisfied when a person creates their will:
- The person must comprehend that they are making a will and the implications of doing so.
- They must remember the nature and extent of their property in general.
- The person must recognize and value any moral responsibilities they may have towards their family, such as identifying potential claimants to their estate.
- The will maker must not be affected by any mental disorder or delusion to such an extent that the will they make would not have been created if they were of sound mind.
If fraud occurs during the execution of a will, the document can be deemed invalid. This may entail situations where the individual who signed the will was not actually the testator or where a subsequent will was created but has since been concealed or destroyed.
To contest a will on the grounds of fraud, an individual must persuade the court that a beneficiary committed fraud with the intention of receiving benefits from the will and that the fraud directly influenced the will’s creation.
If it can be proven that the individual who created the will was subjected to undue influence, a court may rule the will invalid. Undue influence refers to the act of forcing the testator to create their will in a specific manner, either through psychological or physical threats.
To successfully contest a will on this ground, it is essential to present evidence demonstrating that the testator was coerced. Mere persuasion is insufficient to establish undue influence.
A forged will is invalid. Forgery occurs when someone other than the testator creates or signs the will. To contest a will on these grounds, it is necessary to provide evidence detailing how the forgery took place.
The testator did not know and approve the will’s contents
When an individual creates a will, it is assumed that they were aware of and in agreement with its provisions.
To contest a will by arguing that the testator did not comprehend or approve of its contents, it is necessary to produce evidence demonstrating that the individual who made the will did not understand or agree with the contents of their document.
Formal requirements for a will
In South Australia, the Wills Act 1936 sets out the formal requirements for a will.
There are a number of critical requirements for a valid will including that:
- The person making the Will is not a minor (section 5, Wills Act 1936);
- The will is documented and signed in the presence of two or more witnesses (section 8, Wills Act 1936);
- The will reflects the testamentary intentions of the will maker (section 12, Wills Act 1936);
- The will is made in the absence of vitiating factors such as testamentary capacity undue influence, fraud, mistake and duress.
Challenging a will vs contesting a will
It is important to note that contesting a will is different from challenging a will. When a person contests a will, they are taking issue with the provisions of the will (as opposed to the legal validity of the will).
A person contests a will because they claim that the terms of the will are unfair. This is generally because the will fails to make adequate provision for a family member of the deceased. A person who contests a will on this basis is making a Family Provision Claim.
How to challenge a will
To challenge a will in South Australia, you need to commence proceedings in the Supreme Court. The first step is to find out if probate has been granted by contacting the Supreme Court. Probate is the process of proving the deceased’s last will. The grant of probate authorises an administrator to deal with the deceased’s assets.
If you are of the view that the deceased’s will is invalid, you may wish to challenge the will. To do this, you may want to consider filing a probate caveat. By filing a probate caveat, the court will be prevented from granting probate until:
- The parties to the proceedings agree to remove the probate caveat; or
- The court makes an order.
If you and the other parties in the proceedings do not agree to remove the probate caveat and cannot agree on the validity of the deceased’s will, then one of the parties will need to start court proceedings.
The party who is claiming that the will is invalid is usually the party to begin court proceedings. That party will need to set out their reasons for claiming that the deceased’s will is invalid. The other party (the defendant) will then file a defence with the court, setting out why they claim that the will is valid.
Evidence is then filed with the court in the form of affidavits. An affidavit is a written sworn statement of evidence. The judge will consider all of the evidence and make a determination as to whether the deceased’s will is valid.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.