How much power does the Court have to revoke a Will?

What is revoking a Will?

Revoking is a legal term for cancelling or changing a Will. As the objective of a Will is to reflect the current wishes and intentions of the Will maker, the Will maker has the right to revoke a Will whenever they please.

Revoking a Will by a testator is especially feasible where there has been:

  • a marriage, divorce or separation;
  • new child or grandchild;
  • movement to a new State;
  • death of a loved one;
  • a named beneficiary or executor dies or becomes unavailable;
  • a major piece of the Estate no longer exists or a major piece of the Estate has a significant change in value;
  • a living trust is created;
  • there is a purchasing of a significant asset or new investment;
  • there is the involvement in a new business company.

A Court’s power to revoke a Will

After the testator’s death, the Courts also have the opportunity to revoke a Will where they see fit. However, the likelihood of a Court revoking a Will by ‘changing’ or ‘cancelling’ it all together truly depends on the circumstances at hand, and is not something the Courts are necessarily favourable towards.

Cancelling/Challenging a Will

A Will can be ‘cancelled’ by being challenged. To do so, the plaintiff must argue that the Will itself should be struck out because they believe that:

  • 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; or
  • the Will was left unsigned.

How to Challenge (Cancel) a Will

If you are wanting to challenge a will, the first step is to get in contact with a legal professional. They will often get a probate caveat placed on that Will. A probate caveat ultimately stops the executor(s) or administrator(s) of the Estate to administer the assets until a decision has been made about the validity of the Will; the caveat runs out; or is withdrawn by the caveator.

Once the caveat is placed on the Will it is then for you to plead your case to the courts as to why you think that Will should not be the last valid Will of the testator.

If successful, that Will would be struck out and you would file for probate of the previous Will. Alternatively, if there was no previous Will, the Estate would be divided according to Intestacy Law.

How to alter/contest a Will

The wording of a Will can never be altered after the fact, but the way the Estate is distributed can be; either via a Deed of Family Arrangement, Mediation or through the Courts. Altering the distribution is achieved through a successful Will contest, and such a is launched only if the plaintiff has been left out of a Will, or feel they have been treated unfairly by the testator within the Will.

How to contest a Will

If you are wanting to contest a Will you would first have to prove you are part of an ‘eligible class of person’ to launch such a claim. This is an exhaustive list and is provided for in s 91(2)(b) of the Administration and Probate Act 1958 (Vic).

Eligible people include

  1. Spouse or domestic partner at the time of death;
  2. Child of the deceased (including adopted or step child, or someone who believed the deceased to be their parent and was treated as such);
  3. A registered caring partner;
  4. A grandchild; or
  5. A person who was (and was likely to be in the near future) a member of the deceased’s household.

You would then have to prove that the deceased had a moral duty to provide for your proper maintenance and support. E.g. you were maintained by them at some point.

Last you would have to prove that the distribution of the deceased’s estate as set out in the Will, fails to make adequate provision for your proper maintenance and support.

Most importantly, you have strictly 6 months from the date that a grant of probate is made to contest the Will. The law can be harsh in the sense that often ‘out of time’ is synonymous with being ‘out of luck’ – although in some exceptional circumstances an extension of time will be granted.

The likelihood of success – either challenging or contesting

The likelihood of a Will being revoked after the fact is unfortunately immeasurable. What can be said however is that with Will challenges and contests, it is always a battle between testamentary freedom and testamentary duty.

A person is free to set out in a Will their intentions for the distribution of their assets after death (testamentary freedom). However, in Australia, testamentary freedom is not absolute. Testators have a moral obligation to provide for those who were dependent on them, such as children (testamentary duty), which is why the law provides an opportunity for the distribution of a testator’s Estate to be altered, so to restore justice.

If you have any further questions, or think you may have a Will which should be revoked – do not hesitate to give Hentys a call today.

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