There are a number of grounds under which a Will can be challenged. This means that it is important to carefully consider how you draft your Will, to maximise the chance of your estate being distributed in accordance with your wishes.
The purpose of this blog is to briefly run through some of the main grounds upon which people rely to challenge the validity of Wills.
Grounds of challenge
Lack of capacity
A Will can be successfully challenged where it can be proved that the will-maker lacked the necessary mental capacity at the time of making their last Will. This lack of capacity may be due to old age, mental impairment or illness, or due to the influence of drugs, alcohol or other substances altering the will-maker's mental state.
Primarily, to invalidate a will based on incapacity, it must be proved that at the time of signing the Will, the will-maker did not understand the consequences of making a new Will. This could include not understanding:
- the value or extent of their estate; or
- for whom they are expected to make provision under their Will and the potential beneficiaries of their estate; or
- in what proportions or divisions their estate should be distributed; or
- what it means to make a Will and the legal effects of same (i.e. the ramifications of including or excluding certain people).
Undue influence
A Will can be contested where a person closely connected with the Will making process stands to gain a substantial benefit under the Will. To prove "undue influence", it must be shown that the thought process of the will-maker was coerced or manipulated by the person to the point where the resulting Will made is substantially different to what the true intentions of the will-maker would have created.
The person who receives the allegedly-illicit benefit may be required to show the Court that no pressure, threats, intimidation or trickery were involved at any point of the drafting process.
Inadequate documentation
A Will can be challenged if it is improper in form or there is a lack of clarity about the intentions of the will-maker. Such a challenge is particularly common with respect to homemade wills. This is because the language used in a homemade will is often informal or ambiguous so as to mean that the will-maker’s wishes are unclear or inadequately recorded.
In general, we advise against preparing a homemade Will, given their vulnerability to challenge and potential to create problems for the executor of the estate.
Part IV of the Administration and Probate Act 1958 (Vic) (“the Act”)
Also referred to as a claim for testator's family maintenance or family provision, this is the main and most common avenue for challenging a Will.
Since 1 January 2015, a Part IV claim is only possible where it can be shown that the will-maker had a moral duty to provide for the claimant under their last Will, and failed to do so. A claimant must be recognised as an "eligible person" under section 90 of the Act. This is presumed if the claimant is the:
- spouse or domestic partner of the will-maker;
- child or stepchild or person treated as a child of the will-maker; or
- a former spouse eligible under the Family Law Act 1975 (Cth) to bring or had commenced proceedings against the will maker at the time of their death.
However, if the claimant is a:
- “registered caring partner” of the will-maker;
- grandchild of the will-maker;
- spouse or domestic partner of a child of the will-maker (if the child of the will-maker dies within one year of the will-maker); or
- a person who is a member of the same household as the will-maker at the time of their death;
then the claimant must also show that they were wholly or partly dependent on the will maker for proper maintenance and support. It must be proven that the claimant relied on the will-maker to financially provide for them, and the will-maker was obligated to provide for them under their Will because of this reliance.
A potential claimant who doesn't fit into any of these categories is ineligible to commence a Part IV claim.
Further, the Act sets down strict time limits in which a Part IV claim can be brought. Section 99 of the Act requires all Part IV claims be brought within six (6) months of the grant of probate or letters of administration.
How can I learn more?
Rachael McKendrick.
Principal.
- Disputes & Estate Litigation
- 03 9890 3321
- Email Address: r.mckendrick@robinsongill.com.au
Rachael is a disputes lawyer with a focus on helping building and construction disputes, debt recovery, contractual disputes and wills disputes.
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