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Disputing a Will

When a loved one dies, it is not uncommon for their estate to be disputed in some way. Legally disputing a will can be accomplished either through a challenge (when the validity of the will is disputed) or through a contest (when the terms of the will are disputed). This article examines the procedures for disputing a will in Victoria and highlights the central issues relating to this form of legal action.

Disputing a Will in Victoria

The validity of a will can be challenged on the basis that it is not the deceased’s most recent will, that it does not observe the legal formalities or that there was fraud or forgery in the making of the will. The other basis for a challenge is that undue influence was brought to bear on the testator (the maker of the will), or that the testator lacked the necessary testamentary capacity to make a will.

The least serious of these is a challenge to the formalities. A will may be declared by a court to be invalid (or merely “informal”) if it is not written in accordance with these formalities. One of the key rules is that the document must clearly establish itself to be the last will of the testator. A will must also be in writing, either handwritten or typed. It does not need to be full of legalese and formal words: indeed, it must be written in clear and unambiguous language.

It is vital that a will is signed by the testator, and that this signature is witnessed by two people who themselves must sign in the presence of each other and the testator. The role of the witnesses is to ensure that the testator voluntarily and personally executed the will. Given the importance of the role of the witnesses, these individuals must be impartial and not subject to any conflicts of interest. As such, a beneficiary of the will cannot act as a witness, and neither can the spouse of the testator.

Once the will is written and signed, no further erasures or corrections should be made to the text. If a small amendment is made, then the testator and both witnesses should initial the change to show that it is a legitimate correction of the testator’s instructions. It is, however, far preferable for a new will to be drawn up and properly witnessed.

Much more serious challenges to a will are claims that the will is a forgery, or that there was undue influence on the testator, or that the testator lacked the mental capacity to understand the seriousness of making a will. These challenges are serious because they question the veracity of the will, and suggest that the will might not be an accurate reflection of the intentions of the testator. Successfully disputing a will on the basis of forgery, undue influence or testamentary capacity would almost certainly require expert witnesses and may end in a protracted legal battle.

Validating an Informal Will

As discussed above, a lack of adherence to the formalities of will drafting may render a will invalid. However, if it is clear that the will was made knowingly and willingly by the testator, a court would be loath to ignore the wishes of the deceased expressed in the informal will. The most likely outcome is that the court will validate the deceased’s wishes and appoint an administrator to carry out the instructions in the informal will.

Result of a Successful Challenge

The courts are unlikely to be similarly inclined if the challenge reveals forgery or fraud, that the testator was unduly influenced, or the testator lacked the testamentary capacity to make the will. In those cases, it is more likely that the court will overrule the terms of the informal will, and order that the laws of intestacy determine the distribution of the estate.

Disputing a Will: Contesting the Provisions

There is also the option of disputing the provisions of a will in Victoria through a Testator’s Family Maintenance Claim (TFM claim). The Administration and Probate Act 1958 (Vic) establishes that a testator has a moral obligation to reasonably provide for their dependents if they have the financial resources. The family and dependents of a testator can, therefore, dispute a will by contesting that it does not make fair and equitable provision for them.

Result of Successfully Contesting the Provisions

In the case of a TFM claim, the overarching question that the court asks is what a “reasonably minded testator” would do in the same circumstances. If the court finds that the testator acted unlike a reasonably minded testator, they can order that the will is amended. The courts will assess the financial circumstances of the person disputing the will, the needs of any other beneficiaries of the estate, and make a decision about how the estate should be distributed.

Disputing a Will in Victoria: Who is Eligible to Dispute a Will?

Only people with legal standing to appeal to the court are capable of disputing a will in Victoria. This list includes a beneficiary of a will, or anyone who has benefited from a previous will, as well as anyone who would otherwise inherit if the estate were to be declared intestate. In Victoria, this includes the de facto partner or spouse of the deceased, close relatives, and any person who was financially dependent upon the testator before their death.

If you plan on disputing a will in Victoria, time is critical as there are limited options after the will has been distributed. Armstrong Legal can assist you with the process of challenging the will or contesting the provisions of a deceased estate. Please call us on 1300 038 223 or send 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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