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Critical Facts About Consulting You Need to Know

Questions Regarding Laws on Contested Wills in Australia

9 May 2016

Josefa Vargas

Australian courts seldom change valid wills without legitimate reasons. This means that a will can be challenged by a party or individual only under certain conditions.

Which Conditions does a Disputed Will Require?

Under all Australian Territory and State law, circumstances for disputing a will are similar. These are:

1. Incorrect execution of the will
2. The will does not adequately provide for the family members
3. The will being executed is not the final will drawn up by the will maker
4. The deceased was unduly influenced at the time of the signing of the final will
5. The understanding or mental capacity of the deceased was inadequate for and at the time of the signing of the will
6. The will was tampered with

Can one contest an unclear will?

If the will was clear, well-written and specific then a challenge will most probably fail. However, if it's ambiguous, an interested party or the executor of the will maker's estate can apply for clarification of some aspects of the will.

What are negligence claims?

One can challenge a will on negligence claims. This can be considered if:

• The will writer misinterpreting or misunderstanding the intentions of the one making it. This may result in a portion of the estate passing on to a person it was not intended for.
• When clear instructions of the person are not reflected in the document which is evident through omitted gifts or cash or some persons from the list of beneficiaries
• When the will writer does not verify whether the person whose will is being drafted actually owns the property in the document
• If upon clear instructions for finalizing of the drafting process with urgency, the will writer fails to act quickly

This list is by no means exhaustive but captures some of the common reasons for contesting a will.

Who can challenge a will?

Any close relations of the deceased or family member who may go through financial hardship by being left out may challenge a will. This includes:

• A child
• A de-facto partner
• A spouse – current or former
• A dependent

The court will consider the age, physical or mental disabilities and financial resources of the applicant among other factors pertinent to the state of the person in relation to the case.

You should seek legal counsel before lodging an application to challenge a will since it is considered a serious matter by all involved, family, friends, acquaintances and even the courts.

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