Challenging the validity of the Will
You have concerns about the validity of a Will. It is critical to get advice as early as possible to protect your interests.
A document that purports to be the deceased’s Will can be challenged if:
- it is not signed by the will-maker in the presence of two witnesses who have also signed the document (although the Supreme Court may dispense with these requirements in some circumstances);
- the Will is a forgery;
- the will-maker did not have the required mental capacity to make the Will;
- the will-maker did not know or approve of the contents of the Will; or
- the Will was procured by the undue influence of another.
Each ground requires different facts to be established and thresholds of proof that must be met to succeed. We can provide you with legal advice on your specific circumstances at an initial consultation.
If a Will is held to be invalid, the estate will be distributed in accordance with the next most recent valid Will or distributed in accordance with rules of intestacy.
In the case of S v S, the mother of four sons made a Will leaving the whole of her estate to one of them. We acted for two of the disinherited sons. We proved that the mother was suffering from significant dementia and did not have testamentary capacity at the time that she made the Will. The Court found that the Will was invalid and the estate was therefore to be distributed in accordance with the rules of intestacy.
In the case of L v A, the deceased prepared a Will leaving the whole of his estate to his spouse. The deceased dated and had the Will witnessed but forgot to sign it himself. We persuaded the Court to dispense with the formal requirement for the deceased to sign the document and it was upheld as a valid informal Will.
How we can help
We have significant experience in challenging the validity of Wills. At an initial consultation ($385), we can give you preliminary advice and plan your strategy.
Unable to attend our office? We can conduct your consultation by telephone or video-conference.