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.

DIFFERENCE BETWEEN CHALLENGING AND CONTESTING A WILL IN MELBOURNE

Contesting a Will and challenging a Will are two very different things. Contesting a Will is when you have been left out of Will, or feel you have been treated unfairly by the Testator within their Will. Therefore you launch a family provision claim.

To challenge a Will is to dispute a Will, or to say that the Will itself should be struck out. These types of cases usually arise when the person who made the Will was suffering from a mentally degenerating disease, or they were put under pressure to change their Will.

When can you Challenge a Will?

In Melbourne, the most common reasons as to why a Will challenge will occur is because:

• The Will-maker did not have the capacity to make the Will at the time it was signed;
• The Will was the subject of fraud, forgery or made under the influence of others;
• There was an insufficiency and inappropriateness of witnesses to the signing of the Will;
• The Will was left unsigned;

Testamentary Capacity:

• In Melbourne, only adults 18 years or older have the capacity to create a will (however in some jurisdictions minors in the military or are married have the right to make a Will).
• In Melbourne, adults are presumed to have testamentary capacity. It is only challenged in cases of dementia, insanity, under the influence of a substance or if they in some other way lacked the mental capacity to form a Will.
• In Melbourne, to challenge a Will based on mental capacity, you must be able to show that the Will-maker did not understand the consequences of making the Will at the time of its creation.

Fraud, Forgery, and Undue Influence

• This usually involves someone manipulating the vulnerable person into leaving all or much of the property to the manipulator.
• Across all jurisdictions, ‘Undue influence’ merely means that the person lacked the free Will to make their own decisions or to bargain because of the manipulator.
• As a result, the ‘Will’ becomes a document which does not record the true testamentary wishes of the Will-maker and thus will be found to be invalid.

Sufficient and Appropriate Witnesses

• In Melbourne, the Will must be dated and signed by the Will-maker in the presence of at least two adult witnesses. If this does not occur the Will could be void for incompleteness.

Unsigned Will

• In Melbourne, an unsigned Will in most cases is found to be invalid as it does not adhere to the requirements for execution of Wills as depicted in the Wills Act 1997.
• For the exceptions to this rule see the Page on whether an unsigned Will is still valid.

How do you Challenge a Will?

If you have a Will which you believe should be challenged, your first step should be to contact the team at Hentys Lawyers today. During your free initial consultation, we will talk you through the entire process and if you choose to engage with our Melbourne based services, we will ensure that you are feeling comfortable and informed from beginning to end!