Challenging A Will

Challenging the Will of a deceased involves a contest in the Supreme or District courts by persons interested or affected by its existence.

Why Challenge the Will – By challenging the Will of a person, you are questioning the validity of the Will.

What are some of the Instances where a Will can be challenged?

There may be a situation where the testator (the person making his or her Will)

  1. lacked mental capacity to make a Will
  2. had revoked the Will or
  3. there are parts of the Will which have been altered or additions made after the Will was signed by the testator.

In such instances, the validity of the Will is being challenged and will be determined by the Court.

Application in Court – Family Provisions Claim

You must also be aware of Family Provision Applications. Generally, testators may leave their possessions and money to people or causes they choose. If the deceased’s close family members or dependents will suffer hardship, then an application can be brought in Court for a provision from the estate of the deceased.

This is governed by the Succession Act.

When can applications be made. Time is of importance. Applicants must give a written notice of the intended application to the personal representative within six months of the death of the deceased.

Legal action must be commenced within nine months of death.

Who can apply: a deceased’s spouse, the deceased child and dependents of the deceased are eligible to make the application to challenge the Will.

  1. Spouse can be the deceased husband/wife, de facto partner, registered partner or former husband/wife/registered partner.
  2. Child can be the deceased biological child, lawfully adopted child, unborn child and even a stepchild.
  3. Dependant of the deceased can be their parents, parent of their underage child and any person under the age of 18 who was dependant and maintained by the deceased.

What does the court consider: it considers the net value of the estate, the financial position of the applicant, the age sex and health of the applicant, the closeness of the relationship with the deceased, any contribution the applicant may have made to the building of the deceased’s estate and the character and conduct of the applicant.

Who pays the costs of the challenge.  As a rule the loser of the challenge pays. However, a court may decide that the costs be paid by the estate on the basis it was reasonable for the applicant to bring the application.

Join Melissa Ban – Senior Associate with an overview of contesting a Will

Stephens & Tozer has the expertise and diversity of practice, refined over 100 years of traditional experience.

Reach out to us today to let us know what Will service you need and our team of friendly and professional lawyers will help you through the process.

Category: All / Wills and Estates