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What Happens If A Will Is Not Valid? (Vic)

A will is only legally binding if a testator is of sound mind and created the will according to certain rules. When these rules are not followed, an interested party can challenge the validity of the will under the authority of the Supreme Court (Administration and Probate) Rules 2014. In the event that a will is found to be invalid, the Supreme Court will order an alternative approach to the administration of the deceased estate. This article first explores the grounds for questioning the validity of a will and then outlines what happens if a will is not valid in Victoria.

When Is A Will Not Valid?

A will must abide by certain requirements set out in the Wills Act 1997 in order to be considered a formal valid will. A will typically uses certain formulaic language, and the testator must sign and initial the document correctly. Two parties must add their own signatures to acknowledge that they witnessed the testator execute the will.

A will is clearly not valid if someone forged the document or the testator’s signature. Forgery is usually established through handwriting analysis and forensic linguistics, but it can be much harder to prove fraud or undue influence. Nevertheless, if there is evidence to suggest that a testator was tricked into signing a will then the validity of the document must be questioned. Similarly, if someone acted with intentional deception for personal gain or to damage someone else then the will can be challenged on the basis of fraud. Examples of fraud include someone amending a will without the knowledge of a testator, or someone using undue influence to defame another potential beneficiary in the hope of inheriting in the will.

A more common reason to challenge the validity of a will is that the testator lacked testamentary capacity to make a will because of a disorder or mental defect. It should be noted that mental illness or old age is not, on its own, sufficient grounds to assume that a person lacks testamentary capacity. There must be evidence that the testator did not understand the consequences of their actions in making a will, or did not remember the assets that are contained in their estate, or did not comprehend that certain people have a moral and legal right to inherit from their deceased estate.

Challenging The Will

In Victoria, only someone with an “interest” in the deceased estate has standing to challenge a will on the grounds that it is not valid. This includes anyone who will have his or her rights impacted if the will was revoked or the application for probate grant was rejected. The onus is on the applicant to prove their challenge, while the role of the executor or administrator of the estate is to defend the legitimacy of the will.

Probate Caveat

Before filing a challenge, the interested party should lodge a probate caveat with the Probate Office of the Supreme Court. This caveat stalls the probating process until the court hears from both the caveator and the executor on the validity of the will. The court will hear from the disputing parties and make a decision on the facts.

What Happens If A Will Is not Valid?

At the conclusion of the hearing, the caveat will either be set aside and probate granted, or the challenge will be upheld and the will invalidated. In that case, the court will grant probate on an older will or the estate will be declared intestate and administrated according to the Administration and Probate Act 1958. In the event of intestacy, the deceased’s next of kin will inherit the estate in an order of succession, starting with the deceased’s spouse and any children from another relationship (if the estate is valued over a certain amount). If the deceased died without either spouse or children, then the deceased’s parents are next in line to inherit the estate.

What Happens If A Probated Will Is Not Valid?

It is easier to challenge a will just after a testator’s death, as a caveat can be filed to prevent the appointment of an executor and the distribution of the estate’s assets. However, it is possible to challenge a will after the will is probated if evidence comes to light at a later date proving that the will is not valid. An interested party would then apply to the Supreme Court requesting a revocation of the Grant and for the will to be declared invalid.

Our contested wills team can advise you if you are questioning the validity of a will. The team can guide you through what happens if a will is not valid, from helping you lodge a probate caveat to filing a challenge against the will. The experienced solicitors at Armstrong Legal are ready to assist you with any of your legal needs. Please contact or call our offices on 1300 038 223 without delay 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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