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Contesting A Grant Of Probate

The Supreme Court in each jurisdiction grants probate to approve the appointment of an executor and authorise the distribution of a deceased estate according to the terms of a will. Someone opposes or contests a grant of probate when there is reason to doubt the validity of a specific will or when they want to prevent the appointment of a particular executor. This is often referred to as challenging a will. While succession law differs according to the particular state and territory in Australia, there are some common principles. This article gives an overview of the process of contesting a grant of probate with a focus on the criteria for eligibility to legally dispute the issuance of a probate grant.

Who Can Contest A Grant Of Probate?

As the Supreme Court of New South Wales explained in Re: the Estate of McLaren; Mariconte v Nobarani [2015], a person must have “standing” to contest a grant of probate. Typically, someone has standing if they have a legal interest in the deceased estate as a beneficiary of the current or previous will, or would benefit under intestacy law, or are a creditor of the estate. A person has sufficient interest if the granting of probate will impact his or her right to inherit or benefit from the estate. In 2018, the High Court of Australia further clarified the definition of interest. It rejected an argument that a bequest of personal property and jewellery was too insubstantial to amount to an interest. The court stated that it is “legally erroneous to conclude that rights of low monetary value cannot amount to a legal interest”. Therefore, the current position in Australia is that someone who is a beneficiary to any degree of an estate has the legal standing to contest a grant of probate.

What Is The Purpose Of Contesting A Grant Of Probate?

Someone might contest a grant of probate if they have objections to the appointment of an executor because they are unsuitable in some respect. Executorship can be a demanding, time-consuming activity, and anyone with standing may suggest that the executor is unfit to successfully discharge these activities. A court can find an applicant unfit to be executor because they are bankrupt, intellectually disabled or have a history of violent or abusive behaviour. If the court decides that a grant applicant is an inappropriate person to take on the role of executor, they can accept an alternative application from another executor named in the testator’s will or order that a suitable person act as administrator of the estate.

The primary purpose of contesting a grant of probate is to prevent the validation of a will. A will is only valid when the testator executed the will freely without duress. In addition, the testator must be over the age of eighteen and have the legal capacity to understand the consequences of making a will. The Supreme Court will not validate a will when a testator lacks testamentary capacity, or there was undue influence or fraud in the creation of the will.

The person contesting the grant of probate needs to prepare evidence to support their case against the validity of the will. For instance, if the reason for challenging the will is a belief that the testator was not mentally capable, it is necessary to substantiate this claim with medical affidavits and testimony from family members and others who observed the testator’s mental decline.

It is important to understand that challenging a will on the basis that it is invalid is quite a separate process to contesting the provisions of a will on the basis of inadequate provision. A claim against the provisions of an estate can only be made after the court probates the will. Therefore it is not in the interests of a claimant to contest a grant of probate unless they also have concerns about the validity of the will.

Probate Caveat

When a person is contesting a grant of probate, the first thing that they should try to do is obtain a probate caveat. This legal term translates as “let the person beware”, denoting that there is cause for concern over the validity of the will. This is the first step in challenging the will and temporarily prevents the Supreme Court from probating the will. The court will not grant a probate caveat after the issuance of a grant so the caveator needs to act swiftly. Once granted, a caveat lasts for six months unless withdrawn or overridden through court order.

Contact Armstrong Legal if you need any assistance with contesting a grant of probate. Our contested wills team is highly experienced in this field and can give legal advice and represent you during court proceedings. Please call 1300 038 223 without delay for a no-obligation preliminary discussion of your case.

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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