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3 Things To Consider Before Challenging An Australian Will

Wills can be challenged after a person dies, but why might you want to challenge a will and what are the grounds for the challenge? You might feel like the will hasn’t adequately provided for you, but before you launch legal action, you’ll want to consider the potential costs of such a challenge.

Why challenge a last will?

Wills can be challenged on the basis of undue influence, fraud, capacity, and family maintenance. The outcome could be the will is voided completely or in part, or the challenge might be unsuccessful. The court might make other types of orders, like a family provision order giving the challenger a share of the estate.

1. Capacity

Under the law, a will can be challenged on the basis of the testator (the deceased) didn’t have the capacity to make a will when they signed it. This could, for example, relate to cases of dementia. This is known as a lack of testamentary capacity. 

This can happen when a beneficiary of an earlier will challenges a new will because the deceased, they claim, didn’t have the capacity to understand what they were signing. It’s up to the challenger to prove the lack of capacity.

2. Influence

You can also challenge a will on the basis the deceased was under someone’s influence at the time it was made. Like the capacity claim, undue influence claims might occur when the beneficiary of an earlier will challenges a more recent one. 

The focus is on the idea the testator was influenced to sign a will that didn’t reflect their true wishes. So for this type of claim to be successful, you’ll usually need to prove the will ended up being contrary to the testator’s intentions.

3. Family maintenance

This is where the testator’s family believes they’re entitled to more than they’ve been given. The family member isn’t claiming the will isn’t valid. They’re claiming they had dependent relationships with the testator and so want to a bigger share of the estate. The majority of challenges to wills are of this type.

4. Fraud

Challenging a will on the basis of fraud might mean a material fact was deliberately misrepresented. It could happen if the testator was deceived by this misrepresentation into making his or her will, and he or she relied on the misrepresentation. In such a situation, the person committing the fraud might have benefited under the will.

5. Breach of trust

Wills could also be challenged to remove executors or trustees. This might happen if you believe either or both are failing to administer the will properly.

6. Other ways

You can also challenge a will in other ways, including the testator didn’t know or approve of the contents of the will, they didn’t sign the will, they revoked the will, or the will was tampered with after execution. You might launch a legal challenge to clarify the meaning of a will.

Who can challenge the last will?

For instance, 86% of all claims to contest a will in Australia are made by immediate family members. Typically, they might be eligible to challenge a will. This could be a partner, spouse, child, or some other party.

Family maintenance claims a little different. Laws can vary depending on your state or territory, but generally, to challenge a will on a family-maintenance basis, you’ll need to be someone the testator had a moral responsibility to make provisions for.

Financial viability and other considerations

Losing a loved one can be difficult enough, but it can feel worse if you believe you haven’t received your fair share – or perhaps you’ve been cut out completely. It can be tempting to act on these feelings. However, before you give the go-ahead for litigation, consider the following factors.

  1. Cost: Is it financially viable for you to pursue litigation? Challenging a will can cost a lot. Even if you succeed, some of the money will probably have to go towards paying your legal fees.
  2. Emotional toll: The process of challenging a will can be an emotional roller coaster ride. Consider the potential emotional toll of fighting family members, accusations, and hostility. And if you succeed, the process could leave lasting emotional scars.
  3. Time: The process, depending on the complexity of the case, so be certain you have the emotional energy and time to see the process through.

You could challenge a will if you believe you’ve been unfairly treated, if the executor or trustee isn’t fulfilling their duties, or if you think the testator was unduly influenced in some way. Lack of capacity and seeking to clarify the will could be other bases for launching a challenge. Before you decide to challenge a will, consider things like time, cost, and potential emotional toll.


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