What are the common ways to challenge a will?

Published 07 May 2018

In an ideal world, a will should be prepared in a way that adequately makes provisions for your family and friends as well as spells out your final wishes. However, in reality, there is always the chance that someone is unhappy with the allocation after probate and wants to challenge the will in court.

Of course, 'being unhappy' with the will isn't a good reason to contest. With this in mind, what are the most common approaches to challenging a will?

1) Inadequate provisions

If you're unhappy with a will, most often it will be because you feel like it had inadequate provisions for you or your family. For example, you might have been left out of the will entirely or not received the assets that you had been expecting. 

In this situation, it's best to launch a Family Provision Claim with the assistance of a family lawyer. Here, we can analyse the will and attempt to increase your share in court. A Family Provision Claim should determine whether the deceased had made 'reasonable' provisions for you and if you're entitled to anything else.

2) A lack of testamentary capacity

One of the reasons why people are encouraged to prepare and update wills as early as possible is to avoid this potential issue. If you believe that the person signing the document wasn't of sound mind or didn't understand what they were doing, this could be grounds to challenge the will.

A lack of testamentary capacity could be health-related - if they suffered from dementia or a lack of mental capacity - or the individual may have been tricked or coerced into developing this particular version of the will. Of course, making this type of challenge can be tricky so it pays to work alongside an experienced family lawyer.

3) It isn't the right will

As our lives change so should our wills. This means that over the course of time we could theoretically have multiple wills with our name on it. When probate has passed and the executor is allocating provisions, there could be a situation where the wrong will is being used - perhaps a version where you're not mentioned at all.

If an updated or more recent will is available, the court is likely to follow its provisions instead of an older one. Again, it can be difficult to prove this which highlights the value of a family lawyer.

Got a question about challenging a will? Get in touch with the expert team at Malouf Solicitors today.

Please call us on 02 8833 2000 to speak with a lawyer

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Kim of Sydney

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