Contesting a will is an emotionally challenging decision that regularly involves disputes with a loved one. To try and minimise distress and ensure a smooth process, it is important to ensure that you make the correct claim within the required timeframes.

1. When can I challenge the will?

For most claims the time limit is within 6 months of probate being granted.

Probate is a document where the Court confirms that the Will is valid and identifies the executor.

2. On what grounds can I challenge the Will?

 The common grounds to challenge a Will are as follows:

  • The deceased person didn’t have the mental capacity to enter into a Will when it was signed.
  • The Will was forged.
  • The deceased person was under undue influence when they made the Will.
  • There was a breach of trust by an executor.
  • The Will didn’t provide for you / didn’t provide sufficiently for you.

3. How do I show that the Will didn’t provide sufficiently for me?

 The Court considers each case individually. Generally, the facts which the Court considers include:

  • Whether the deceased person had a moral duty towards you.
  • Whether you were fully or partially dependant on the deceased.
  • What were the reasons for the deceased person making the Will in the way they did.
  • Did the deceased person make adequate provision for you? 

4. What is a breach of trust by an executor?

 A breach of trust by an executor is where the executor does not administer the estate properly. Common breaches are as follows:

  • Misappropriation – where the executor has stolen the funds or fraudulently deposes of the assets for profit.
  • Maladministration – if the assets have not been dealt with according to the Will or law.
  • Breach of trust – where the executor breaches their duty of care to the beneficiaries – for example failing to demand the payment of a debt owing to the estate. 

5. What if there is no Will?

 If there is no Will, the Court will appoint someone to administer the estate by way of Letters of Administration.

 If you intend to challenge a Will it is important to consult a lawyer quickly so that the correct process can be initiated within time.

 If you have any queries please contact Catherine Ballantyne at Catherine.Ballantyne@madgwicks.com.au or at (03) 9242 4744.