Challenging a Will

There are generally three areas in which you can make a claim against a Will.

There may be an argument that the Will maker did not have capacity to understand what he was doing when he made his Will.

There may be a suggestion that the Will maker was unduly influenced in making a Will.

And the main claim is that the Will maker did not adequately provide for you.

Each of these claims will depend on all of the circumstances and the evidence that can be used to support the claim. We can provide you advice as to whether you have a viable claim.

And we can provide you with advice on how to limit a potential claim if you are the Will maker and how to defend a claim if you are the Executor of the estate.

FAQs

If you have been cut out of your parent’s or a loved one's Will then the two main considerations are whether your parent knew what they were doing and, alternately, even if they did know what they were doing, whether they ought to have made provision for you.

The first issue relates to capacity and it depends upon a medical and legal assessment of whether the Will maker understood what they were doing.

The second issue is a family provision claim under the Succession Act which allows an eligible beneficiary to make a claim if the provision for them is inadequate.

If there is sufficient evidence to show that the Will maker really did not have capacity to make their Will then there is potential to challenge that Will. A successful challenge would mean that a prior Will may then come into operation.

The evidence needs to be strong to prove incapacity.The mere fact that you may have been left out of the Will alone is not enough. If there is contemporary medical evidence at the time the Will was made which brings into question the capacity, and the Will appears inconsistent with prior Wills or the family structure, then that may point towards some incapacity.

We can assist you in assessing any evidence you have as to the Will maker’s incapacity and give you some guidance on any further evidence needed and/or the potential for your claim to succeed.

If the Will maker had capacity, but just did not give you much of the estate, then you may have a claim. You need to be an eligible beneficiary which is, in general terms, the deceased’s spouse (including de facto spouse), child or other person financially dependent on the deceased.

If you are an eligible beneficiary, then the next step is to determine whether what you have been given is adequate. That involves a number of issues including your financial needs and the relationship you had with the deceased.

We can give you more information as to what the Court will take into account.

They Will can be challenged on the grounds that the Will maker was unduly influenced in deciding how to make their Will. However, this is a very difficult case to succeed in as the evidence must be capable of proving that the intentions of the Will maker were so overborne that he was coerced into doing something he did not want to do.

This is an unfortunately common statement. Disinheriting a child is not easy but it really depends upon all the facts and circumstances. So, a wealthy adult child might find it difficult to make a challenge to his parent’s Will if his brother and sister were relatively poor, and an adult child who has had nothing to do with his parent for the past 30 years may also find it difficult to claim that he was not adequately provided for.

These are merely two extreme examples. Usually there is not one single element which can be relied on to exclude a claim.

However, you could consider at least documenting your reasons for not providing for your child. We can assist you in this and guide you as to what matters are relevant to be recorded.

The role of the Executor, generally, is to uphold the terms of the Will.But there is also some discretion for the Executor to negotiate to settle a claim rather than waste substantial money in fully defending a Will which, objectively viewed, is unreasonable in its provisions.

We can assist you with considering all the evidence and weighing up the potential for success or otherwise in defending the claim.