Challenging a Will

Unless there are legitimate reasons, Victorian courts are unlikely to change a valid Will. Challenging a Will in Victoria is therefore only possible under certain circumstances.

With many years experience in the sector, the lawyers at Hentys have handled several will dispute cases and are best placed to assist you in challenging a Will. If you are considering challenging a Will the following information may be of use to you.

CHALLENGING A WILL: IS THE WILL VALID?

When determining whether or not a will is valid, the Court will consider the following questions:

• Is it the last will made by the deceased?
• Was the Will executed correctly?
• Does the Will adequately provide for family members?
• Was the will-maker have of sufficient mental capacity at the time the will was executed?
• Was the will-maker have of sufficient mental capacity at the time the will was executed?
• Was the Will drawn up under undue influence?
• Was the will altered after it was originally signed?

CHALLENGING A WILL: WHAT IS UNDUE INFLUENCE?

If the will-maker was assisted in drawing up the will by someone who stands to gain a great deal from it, that person may have to prove to the court that there was no pressure, force or fear involved in the making of the Will.

It’s important to note that flattery and persuasion is not unlawful and as such the court will not overturn a Will unless it considers undue influence has occurred. ‘Undue Influence’ means that the will-maker’s mind was coerced to an extent that the resulting will was contrary to the will-maker’s real intentions.

A person challenging a will by claiming that undue influence was involved must prove the fact with full details and supporting evidence. It is not a claim that should be brought lightly.

CHALLENGING A WILL: WHAT IS FAMILY PROVISION?

A Will can be challenged in the event that adequate provision has not been made for certain defined eligible persons, whether or not there was a will and whether or not the eligible person was mentioned in it.

CHALLENGING A WILL: ARE THERE ANY TIME LIMITS?

If you are considering challenging a Will, it’s important to note that in Victoria your application must be made:

• Within six months after the date of the grant of probate or administration, OR
• Three months from the time you give notice to the estate.

In certain cases the Court may give an extension to this time so long as the estate has not been completely administrated. This extension however is not a guarantee.

CHALLENGING A WILL: AM I ELIGIBLE TO APPLY?

You may be eligible to challenge a Will if your relationship with the deceased falls under the following categories:

• You are the husband or wife of the deceased person at the time of their death
• You were living in a facto relationship with the deceased at the time of their death (including same sex partners)
• You are a child of the deceased person
• You are the former husband or wife of the deceased person
• You were (at any particular time) wholly or partly dependent on the deceased person, and at any time a member of the same household as the deceased person
• You are a grandchild of the deceased who was (at any particular time) wholly or partly dependent on them
• You had a close personal relationship with the deceased at the time of their death

CHALLENGING A WILL: WILL I ATTEND A MEDIATION SESSION?

The Court is likely to order a compulsory mediation session before any hearing unless there are special reasons such as the risk of violence.

At Hentys Lawyers, we understand that challenging a Will can be a confusing process, made all the more difficult due to the emotional circumstances. As a client of Hentys, we are committed to helping you make sense of the legalities of your case and assist you in lodging your claim within the imposed time restrictions.