Bringing a Will challenge is about getting the Will struck out (declared invalid). That may mean that an earlier Will becomes effective as if it was the last Will. Alternatively, if there was no earlier Will or an earlier Will can’t be found then the estate may be intestate (no valid Will).

Some of the most common reasons for challenging the validity of a Will are as follows:

  1. The Will failed to meet the legal formalities to be recognised as a valid Will.

To be valid, generally a Will must be in writing, signed by the Will-maker and witnessed by 2 adult persons who are not beneficiaries named in the Will. If a Will is not valid, it can be challenged and potentially struck out.

Sometimes it is necessary to make an application to the Court to have the Court declare an otherwise invalid Will as valid. Such applications are usually only made if there is sufficient evidence that the Will-maker intended the document to be his or her last Will but there was some technical defect, such as improper witnessing. Other common examples are video recorded Wills (fails to meet the ‘in writing’ requirement) and suicide notes that contain an expression of testamentary wishes (often such notes are not signed and typically never witnessed).

  1. The Will-maker did not have the capacity to make the Will at the time it was signed (lack of testamentary capacity).

Testamentary capacity requires a Will-maker to understand:

–        What a Will is; and

–        What his or her assets are (the extent of the property which he or she is disposing); and

–        How he or she wishes to divide those assets and who they should consider when dividing those assets (persons who have a moral claim on the Will-maker, such as a spouse).

Further, there must be no disorder of the mind or delusions that affect the Will-maker’s decision as to who to benefit or not benefit in the Will or that affects the Will-maker’s understanding as to the extent of his or her assets.

The Will is a forgery.

The Will is a fake or the Will-maker’s signature has been forged. Expert forensic evidence is often needed in such cases.

The Will was made under the influence of others.

This occurs where the Will-maker is pressured to write a Will in a particular way, usually for the benefit of the person doing the influencing. Manipulation is often seen in the form of bullying, harassment, threats, trickery, lies and blackmail but also seen in false care/affection or flattery.

Getting a Will knocked out due to undue influence is not necessarily an easy task as it is necessary to prove coercion, such that the Will-maker felt they had no choice but to make their Will in a particular way (that is, the Will-maker was deprived of free will).

Challenging the validity of a Will is different to contesting an estate. Contesting an estate usually happens because there has been inadequate provision in the Will for the person bringing the family provision claim against the estate. Read more about contesting an estate here or contact Canberra’s Estate Planning Lawyers.