When a loved one dies, disputes can arise not only about the distribution of their estate but also about the legal validity of their will. Unlike family provision claims which seek to alter the distribution of an estate by adjusting the entitlements set out in the will (discussed in our previous article available here), challenges to the validity of a will focus on whether the will should be admitted to probate at all.
If a challenge to the validity of a will is successful, estate is distributed according to an earlier valid will or, if none exists, under the laws of intestacy.
This article outlines the key legal grounds for challenging the validity of a will and the process involved.
Who can challenge the validity of a will?
A challenge to the validity of a will can generally be brought by any person who has an interest in the estate.
This may include:
- A beneficiary named in a prior will but who does not receive provision, or receives lesser provision, under the later will; or
- A person who would benefit if the will were declared invalid (importantly, this may include persons such as nieces and nephews who would not be "eligible persons" entitled to make a family provision claim.
Grounds for challenging the validity of a will
A will's validity may be challenged on several legal grounds in Victoria. The most common are outlined below.
- Lack of testamentary capacity
The law requires that a person making a will (the testator) must understand what a will is, what assets they own, and who may have a claim on their estate. If the testator was suffering from a medical condition such as dementia at the time the will was made, it may be found that they lacked the necessary capacity.
This ground is commonly established by expert medical evidence.
- Lack of 'knowledge and approval'
Even if a testator had "testamentary capacity", they must also have known and approved the contents of the will. This is particularly important where "suspicious circumstances" exist, such as a significant change in the will shortly before death, or where a person who benefits from the will was involved in its preparation. In such cases the court may require the person to uphold the will to prove that the testator fully understood and approved its terms.
- Undue influence
A will must be made freely and voluntarily. If the testator was subjected to pressure, manipulation or coercion, the will may be invalid due to undue influence. These claims are often made where a testator was isolated, dependent on other or in a vulnerable position. However courts require compelling evidence to support such claims. The mere fact that a beneficiary received a substantial benefit is not sufficient.
- Fraud or forgery
If a will was forged, fabricated or signed based on deliberate representations, it may be declared invalid. These cases are rare but very serious. Where fraud is proven, the will is treated as if it was never made. However where fraud is alleged, but not proven, serious consequences may follow for the person making the allegation.
- Failure to comply with legal formalities
Under the Wills Act 1997 (Vic) (Act), a will must be in writing, signed by the testator and witnessed by at least two people. If these formalities are not met, the will may be declared invalid unless the Court is satisfied the informal will was intended by the testator to operate as their final will. In those circumstances the Court may admit the document as an informal will under section 9 of the Act.
How to challenge the validity of a will
Challenges to a will's validity are brought in the Supreme Court of Victoria. If probate has not been granted, the challenger may file a caveat with the Court to prevent a grant from being issued until the dispute is resolved.
If probate has already been granted, the challenger must apply to have the grant revoked. The process is procedurally more complex and generally requires more substantial evidence.
In all cases, evidence is critical. Suspicion alone is insufficient. Key evidence may include medical records, the solicitor's file, and affidavits from relevant witnesses. In cases involving questions of capacity, expert reports from medical practitioners are often required.
Timing and legal costs
There is no statutory time limit for challenging the validity of a will. However, delay can severely prejudice the outcome, particularly if estate assets have already been distributed. Early advice is essential.
Parties should also be aware that legal costs can be significant. If a challenge is unsuccessful, the Court may order the challenger to pay not only their own legal costs but also those of the estate or other parties.
Final thoughts
Challenging the validity of a Will is a complex and often sensitive matter. In appropriate cases, however, such challenges are vital to ensure that the testator's true intentions are carried out and that the estate is not administered under a Will made without capacity or under pressure.
If you have concerns about the validity of a will, or are defending one from challenge, Pointon Partners has deep experience in probate litigation and contested estates.
We welcome enquiries and can assist in navigating these disputes with clarity and discretion.
Contact Carl Millington for a confidential no-obligation discussion
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
