Introduction
In order for a Will to be valid, the Will Maker must have chosen to sign their Will free of any overt pressure or influence and have possessed the capacity to understand what they were signing.
The most common grounds for contesting the validity of a Will are:
- That the Will Maker was too unwell (often with dementia or similar degenerative illness) to have the capacity to reasonably assess who should receive their Estate
- That the Will Maker was forced by someone into making their Will. This goes beyond a person asking or suggesting that a Will should be made in their favour and involves actually pressuring the Will Maker to sign against their better judgement, and
- That the Executor is attempting to apply for Probate of a Will that has since been superseded. Unless otherwise explicitly provided in a Will, the most recently executed Will revokes all other Wills
What if I believe a Will is invalid?
If you believe a Will is invalid you should take urgent steps to prevent a Grant of Probate from being issued, by lodging a Probate Caveat. A Probate Caveat prevents the proposed executor(s) or administrator(s) from obtaining a grant of representation, and thus being able to administer the estate of the deceased person. A Probate Caveat will last for six months from the date on which it is lodged, unless otherwise directed by the Court. A Probate Caveat is lodged electronically on the Supreme Court filing system, which we can assist you with.
Alternatively, if a Grant of Probate or Letters of Administration have already been granted, you may seek to have the grant revoked. This should occur as soon as possible after the grant, as there exists a statutory time limit of six months from the date Probate or Letters of Administration are granted within which a challenge may be initiated.
You can also refer to our blog post on challenging a will for additional information on contesting a will.
Can we assist you to contest the validity of a Will?
Contact our Probate & Estates team.
