Most people in Australia will have accumulated substantial possessions during their lifetimes and many will leave assets of considerable value at the time of their death. With large sums of money at stake it is not surprising that many potential beneficiaries consider challenging a will if they have been left out altogether or have been inadequately provided for when they believe that they are entitled to a greater sum.

Disputed Probate

For wealth to cascade down the generations in the manner envisaged by a person who makes a will it is essential that the will is properly and legally drafted by a professional who knows how to ensure that the testators wishes will be fulfilled after their death. If a will is not valid or if it fails to distribute all of the assets or if it fails to properly provide for a dependent there is often the opportunity for an aggrieved potential beneficiary to take legal action challenging a will.

Grounds to Contest

A lawyer will first consider whether or not the will is valid and will look for grounds to support challenging a will in the way in which the will was executed. Thereafter consideration will be given to the testator’s state of mind at the time of execution and whether or not there was full mental capacity or the potential for undue influence. In order for a will to be valid it must satisfy all of the following conditions :-

• the testator must be of full age
• the testator must have full mental capacity at the time of signature
• the testator must understand the consequences of their actions
• there must be no undue influence on the testator
• the will must be signed by the testator
• the will must be signed by two witness present at the same time
• a witness beneficiary will lose their inheritance

Dependents

If the testator had a dependent at the time of death but failed to make adequate provision in the will for that dependent then there will be grounds for challenging the will by the dependent.

Partial Intestacy

Sometimes a will does not distribute all of the assets, known as ‘partial intestacy’, which can lead to action challenging a will as in the absence of a bequest any unallocated property can be forfeit to the state.

Lost or Destroyed

Legal action challenging a will often takes place in the case of lost wills where the beneficiaries of the lost will seek to obtain probate on a copy whereas the beneficiaries of an earlier will maintain that the later will is not lost but was physically destroyed by a testator as a deliberate act of revocation thereby reviving the earlier will.

Probate Caveats

The first step in challenging a will usually starts at an early stage by the issue of a probate caveat which warns a potential litigant of an application for probate thereby giving time to mount a formal legal challenge. In certain circumstances legal action can be started even after a Grant of Probate has been issued.

Free Legal Advice

If you need to consider legal action in these matters you should contact us today. We can provide you with free legal advice about your case and all matters related to wills and probate. Just complete the contact form on this website. The consultation is completely free and confidential, and speaking with one of our solicitors does not obligate you to use our services.