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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 solicitor or lawyer 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's solicitor to take legal action challenging a will.

Valid Will Requirements

There are certain legal considerations necessary in order that a document purporting to be a will is considered to be valid. There is no specific ‘will definition’ but there are a number of legal requirements that may be considered as part of a will definition and failure of any of them can invalidate the document which would mean that the will is void and could lead to interested parties taking legal advice about challenging a will. If there is no earlier will then the intestacy rules would take precedence and if there is an earlier valid will, that earlier will would take precedence. The basis requirements for a document that would fit into any valid will defintion are as follows :-

• the testator must be of legal age which in almost all cases means that the person making the will must have been aged at least eighteen years old at the time that the will was executed (signed and witnessed).

• The testator must have full mental capacity at the time of signature. This is a matter for medical authorities and expert witness evidence from a consultant psychiatrist. A will made by a person suffering from a mental disability may be null and void in which case an earlier will may take precedence if the testator was of sound mind at the time the earlier will was executed. This is particularly important in the case of the elderly who may be suffering from dementia. It is however worth mentioning that some mentally ill individuals do have lucid moments and a will made during a period, however short, when mental capacity has returned will be valid.

• The testator must understand the consequences of their actions. This impinges both on mental capacity outlined above and where the testator is fooled into signing a document that they think is something else. Many testators have signed a will thinking they were witnessing someone else’s will at the behest of a corrupt beneficiary.

• There must be no undue influence, coercion or duress on the testator. Many elderly people are oppressed by others including relatives, carers and neighbours. Undue influence is pressure that falls short of duress and usually exists where there is some sort of relationship between the parties. Duress or coercion is based on a threat to cause harm and is generally thought of as considerably more serious than undue influence.

• The will must be signed by the testator who must understand the nature of document that is being signed. The testator may sign in advance of the witnesses but must acknowledge the validity of the signature immediately prior to witnessing.

• The will must be signed by two witness present at the same time and in the presence of the testator who may have signed the will before the witnesses arrive but the testator must acknowledge the signature in their presence immediately prior to the witnesses signature. All three must be present at the same time when both witnesses sign the will. Witnesses must be of legal age which generally means they must be aged over 18 years old and they must also be of sound mind and not take anything under the will as a bequest. A witness who is left an inheritance will loose that inheritance but the validity of the rest of the will remains unaltered.

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 by a solicitor to the testators 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

Dependants

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

Solicitors 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.

Solicitors 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. The consultation is completely free and confidential, and speaking with one of our solicitors does not obligate you to use our services.

If you are concerned that a document in contention does not fit into the standard will definition you may need to take legal advice. Our specialist solicitors offer free initial advice with no further obligation on the possibility of contesting a will or probate. Just send the contact form or email our offices and a solicitor will give you information on how to preserve your legal rights. Time limits may apply and you should not delay taking qualified advice.

HELPLINE: ☎ 1800 455 886