Valid Will

Most people in Australia possess assets at the time of their death and want their property to be distributed according to their wishes. A valid will gives legally enforceable instructions about the distribution of assets and who should be in charge of the process. In some cases there may be dispute about the validity of the document and disputed will solicitors may become involved in a legal challenge to contest probate. In order to ensure that assets are distributed according to the wishes of the deceased it is important that a legally valid will is in force at the time of death however even then a challenge can still be mounted in certain circumstances by disputed will solicitors in a contested probate claim before the Australian Supreme Court. If there is no will the ‘intestacy rules’ dictate the allocation of the deceased’s assets to relatives or if there are no qualifying relatives to the State.

Challenging A Will

There are a number of grounds for challenging validity and disputed will solicitors will initially consider matters outlined below if they intend to contest probate :-

• The person who made the will, who is known as the testator, must have full mental capacity and have been able to understand what they were doing and the consequences of their actions.
• The testator must not have been subject to undue influence, duress or pressure whilst making, preparing or executing the will.
• The will must not be a forgery and must have been made by the deceased with their consent.
• The document must have been executed in accordance with the law and have been properly signed and witnessed.
• The will must properly provide for dependents.
• Any later will which is subsequently found.

Contested Probate

In order to obtain a Grant of Probate or Letters of Administration which are documents that give authority to deal with the estate of the deceased, the proposed executor or administrator must make application to the Supreme Court. It is possible for contested probate lawyers to challenge a will both before and after the issue of a grant of probate or letters of administration :-

• A proposed grant of probate can be delayed and subsequently challenged in a court of law by the use of a ‘caveat’ which is filed at the Supreme Court and puts the applicant on notice of any subsequent application for a grant thereby allowing disputed will solicitors the time to issue legal proceedings in appropriate circumstances.
• An application can be made to the Supreme Court after the issue of a grant of probate or letters of administration to challenge a will if there is inadequate provision for dependents who are defined by statutory provisions.
• A grant can be revoked in limited circumstances including where it has been made to the wrong person if a later will is discovered or if it is irregular and was made when a caveat was in force or if it has become ineffective as in the case of the executor becoming mentally ill.

Free Legal Advice

Our solicitors deal with matters relating to disputing or challenging wills and contested probate issues. The law varies dependant on the domicile of the deceased, where the will was executed and the location of the assets and as a result there are often different statutes, rules, protocols, practices and time limits applicable to distribution of the estate. Our qualified solicitors operate nationwide and can assist you in every Australian location. If you would like free initial advice with no obligation just complete the contact form and a specialist solicitor will phone you immediately.