Do you feel like a deceased friend or family member’s Will does not reflect their wishes? Or perhaps you are concerned that at the time of making their Will, they were not in the right frame of mind to understand what they were doing. If so, you may be able to challenge the validity of their Will.

In order to challenge a Will, you must be someone who has an interest in the deceased’s estate. A person who has an interest in the estate is someone who is referred to in the Will, or if the person died without a Will, someone referred to in the laws of intestacy such as a child or spouse of the deceased.

Reasons for challenging a Will include:

• fraud;
• lack of testamentary or “Will-making” capacity;
• coercion and undue influence;
• the absence of knowledge and approval of the contents of the Will.

In circumstances where the Will maker lacked the mental capacity to enter into a Will, that Will may be deemed invalid and set aside by the Court. A person may lack mental capacity if they were suffering from severe mental illness or brain disease such as dementia at the time of making the Will.

Another circumstance in which the Court may find that a Will is invalid is where the Will maker is not aware of the contents of the Will or where they have been pressured to leave something to a particular person when they ordinarily would not have done so.

In the event the Court decides that a Will is invalid and is set aside, the deceased’s previous Will is used. Where there is no previous Will, the laws of intestacy will apply.

Sometimes a person might have written a letter, or set out their wishes in another informal document. The Courts have powers to declare that informal document in certain circumstances, even if there is an earlier formal Will.

Our team can provide you with advice on challenging a Will as well as other options which may be available, such as making an application for family provision.

Please do not hesitate to contact our office on (07) 4963 2000 or via our online contact form should you have any queries.

Lara Tom
Litigation & Dispute Resolution