Disputes over Wills can be stressful, costly, and unexpected. Whether you’re making a Will, administering an estate, applying for Probate, defending a challenge to a Will or questioning your exclusion as a beneficiary, understanding the main ways Wills can be challenged is essential.
The two main ways Wills are challenged is challenging the validity of the Will itself, or by a claim challenging whether the Will-maker has made adequate provision for someone they have a moral obligation to provide for (testator’s family maintenance).
1. Validity disputes
Testamentary capacity
For a Will to be valid, the Will-maker (testator) must have had testamentary capacity when creating it. This means they need to:
- Understand what a Will is and its effect;
- Have a general idea of what property they own and what they are giving away in their Will;
- Recognise any likely claims against their estate or people who they should be considering when disposing of their assets;
- Make decisions about the disposition of their property free from irrational beliefs or delusions.
Testamentary capacity is usually presumed, but this presumption can be rebutted. If the testator did not have testamentary capacity, then the Will is invalid.
Knowledge and approval
A person making a will is presumed to know and approve its contents. Challenges may arise about the testator’s knowledge and acceptance if there are questions about testamentary capacity or suspicious circumstances around the creation of the Will. If there are suspicious circumstances regarding how the will came about, this can mean the party trying to prove the will needs to positively prove the testator had testamentary capacity and knew and approved what was in the will.
Undue influence (in relation to Will-making)
If someone improperly influences a person to change their Will, or create a new one, the Will may be invalid due as a result of it having been procured by undue influence. To invalidate the Will, it needs to be shown that there was actual coercion that overbore the testator’s own free will to do a Will in the form they wanted. The level of undue influence and coercion required to succeed will depend on all of the circumstances, including the testator’s vulnerability to influence.
Before disputing the validity of a Will, the terms of the previous valid Will should be investigated. Sometimes the terms of the previous Will are no more favourable to the person considering challenging the Will than the current Will.
2. Testator’s family maintenance
In Australia, it is accepted that we are free to dispose of our assets however we want, including through a Will: we have “testamentary freedom”. But the courts can intervene when this freedom is abused.
Eligible persons, such as spouses, children or financial dependants, can apply for further provision from the estate when they have been left out or are inadequately provided for. These claims are called testator family maintenance claims, further provision claims, or, in Victoria, Part IV claims.
A testator family maintenance claim is not a dispute about ensuring equality between beneficiaries (for instance, children of a deceased). To be successful, applicants must establish that:
- the deceased owed them a moral duty to adequately provide for their support and maintenance;
- the deceased has failed that duty;
- they have need for further provision than what the Will provides.
3. Estoppel
In addition to the more common types of claims discussed above, if the deceased promised to leave specific assets or benefits to someone after their death, and this promise isn’t honoured in the Will, the person to whom the promise was made may be able to enforce the promise. They must be able to show that they relied on the promise and have suffered loss because of it.
Estoppel claims often arise in relation to estates that contain shares or property related to a family business, especially farming properties.
Act Quickly
Timing is critical. Each type of claim has its own strict time limits as to when you can make an application. Failure to make a claim by the relevant deadline can mean you are unable to challenge the Will, or otherwise pursue legal rights.
How we can help
The Estate Litigation Team at Moores is one of the largest and most experienced in Australia, and can advise and guide you through your challenges or disputes related to Wills and estates.
Additionally, you can:
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.