The loss of a loved one can be a traumatic time, and it could be more emotionally trying if someone in the family feels they haven’t been adequately provided for in a will. In some circumstances, you can challenge a will. So when can you successfully challenge a will, and what’s involved in a will dispute? We explore factors that could improve the chances of making a will contestation successful.

Reasons for contesting a will

Though Australian law recognises the right of people to decide who receives their property after their death, it also allows for challenges in some situations. After a person dies, you might be able to challenge their will on a few different grounds.

1. Capacity

You might be able to argue they didn’t have the capacity to make a will at the time they made it. In technical terms, this is a claim about a lack of testamentary capacity. Testamentary capacity is defined as a lack of ability to understand the moral obligations of making a Will, including how estate decisions will impact on family members and other dependants.

If you challenge on this ground, you’re saying the deceased didn’t have the testamentary capacity to understand what he or she was signing. This means he or she didn’t have the ability to understand the moral obligations, including how decisions would impact family members and dependants, of making a will.

2. Influence

A will could be challenged on the grounds that the deceased was under the influence of others. If you allege undue influence, you’re saying the deceased was influenced by someone to sign their will and the will doesn’t represent their true wishes. This tends to be a more difficult ground for challenging a will.

3. Entitlement

In some situations, you could challenge a will because you believe you’re entitled to more than you received from the deceased’s estate.

Most will challenges are of a type known as a family maintenance claim or family provision claim, and this type of challenge falls under the entitlement ground. With this type of claim, you’re not claiming the will is invalid but asking the court to recognise you had a dependent relationship with the deceased before their death. You’re arguing you weren’t provided for adequately under the will and asking for a bigger share of the estate.

Note you can also challenge how the will or trust is being administered by the executor or trustee through a breach of trust claim. Other types of will-related disputes could involve things like missing beneficiaries, clarifying the meaning of the will, and errors or mistakes. Also keep in mind each state and territory has its own laws on wills and succession, so the process involved can vary depending on your state and territory.

Filing your challenge in time

Strict time frames apply to challenging a will, so check the rules in your state/territory. For example, in NSW, you have 12 months from the date of the death of the deceased to apply for family provision. In Victoria, you have six months from the grant of probate to file a claim. In Queensland, it’s nine months from the death of the deceased, but you need to give notice about the claim to the executor within six months.

However, if you’re challenging the validity of a will, it’s usually best to file much sooner, before the grant of probate. This way, you won’t need to ask for a revocation of the grant of probate, which makes the process more complex. Most cases of will contestation will see the matter settled – for example, at the mediation or arbitration stage – before the final hearing at court.

What makes a successful will challenge?

The elements of a successful will challenge depend on the type of grounds for your challenge. For all types of claims, you should first establish you have standing to challenge the will and make sure you’re within the applicable time frames.

Entitlement

For a family maintenance claim (claiming entitlement), you typically need to be closely related to the deceased, like a spouse, parent, child, stepchildren, or another close and significant relationship. To improve your chances of a successful challenge, there has to be evidence of a moral duty to provide for you, along with evidence the estate hasn’t made adequate provisions.

Evidence of financial need could strengthen your claim. If your claim doesn’t negatively impact other beneficiaries, this could also raise the likelihood of success.

Influence or lack of testamentary capacity

For claims based on undue influence or capacity, you might need medical records or other relevant evidence proving the will maker was influenced or lacked testamentary capacity. If you’re claiming a lack of testamentary capacity, you might need to show how the deceased lacked the knowledge or understanding to make a legally binding, valid will. If you’re challenging the will on the basis of undue influence claims, you need to offer evidence that the deceased had been influenced to the degree their free will was completely oppressed.

Most challenges to wills involve family maintenance or entitlement claims, though you could also challenge a will on the basis of undue influence or lack of testamentary capacity. Typically the person making the challenge needs to provide evidence for their claim. Strict time frames apply for filing a claim, so check with your lawyer for advice specific to your state or territory and your situation.

Thinking of challenging or contesting a will? Not sure if you have sufficient grounds? Speak to the expert team at TK Legal today, please call us on +61 2 9212 2422 or email info@tklegal.com.