Challenging a Will: Do You Have a Valid Claim?

In Victoria, challenging a will can be a complex but necessary step if there are concerns about its validity or fairness. While a will is meant to express the testator's final wishes, certain circumstances can justify questioning it’s legitimacy. If you're considering contesting a will, it’s essential to know what grounds are legally valid under Victorian law. This guide covers the key reasons why wills are challenged, with examples of successful and unsuccessful claims.

Key Grounds for Challenging a Will

Lack of Testamentary Capacity

One common ground for contesting a will is questioning the testator’s mental capacity at the time the will was made. For a will to be valid, the testator must understand the nature of making a will, the extent of their assets, and who may reasonably expect to benefit from the estate. Additionally, the testator must not have been suffering from a mental condition that could impair their judgment or decision-making.

Example: A successful challenge could occur if medical evidence shows the testator had advanced dementia at the time the will was created, making them incapable of understanding the nature of the document.

However, if the testator had a clear mind despite physical illness, a challenge would likely fail. For instance, if the testator was ill but mentally capable when they signed the will, the courts would typically uphold the document.

Undue Influence

Undue influence involves someone exerting excessive pressure on the testator to alter or create a will in their favour. This could be through manipulation, threats, or coercion, resulting in a will that does not truly reflect the testator’s intentions.

Example: A successful challenge might occur if a caregiver manipulated the testator into leaving the entire estate to them, despite the testator having previously expressed a desire to distribute assets more evenly among family members.

On the other hand, not all influence amounts to undue influence. For example, if the testator simply favored one child over another due to a closer relationship, and there’s no evidence of manipulation, a challenge would likely fail.

Improper Execution

Wills must be executed in accordance with the formalities set out in the Wills Act 1997 (Vic). This means the will must be signed by the testator in the presence of two witnesses, who must also sign the will in the testator’s presence. If these steps are not followed, the will could be deemed invalid.

Example: If a will wasn’t signed in front of witnesses, or there are pages missing in the will, a successful challenge could result.

However, if the correct procedures were followed and the witnesses and testator signed the document properly, the challenge is unlikely to succeed.

Family Provision Claims

In Victoria, eligible people can challenge a will if they believe they were not adequately provided for. Under the Administration and Probate Act 1958 (Vic), those eligible to make a claim include the deceased’s spouse, domestic partner, children, stepchildren, and dependents who were financially reliant on the deceased.

Example: A successful claim could occur if an adult child with a disability, financially dependent on the deceased, was left out of the will.

Unsuccessful claims often occur when independent adult children, or those with no financial dependency on the deceased, contest the will simply because they feel it’s unfair. If the court finds that the testator had legitimate reasons for their decisions, the claim is likely to fail.

Challenging a will in Victoria is a legal process that requires clear evidence and valid grounds. Whether questioning the testator’s capacity, alleging undue influence, citing improper execution, or making a family provision claim, the success of the challenge depends on the strength of the case and the specific facts surrounding the will.

Before proceeding, it’s crucial to seek legal advice to determine if your case meets the legal thresholds required under Victorian law. This will help you navigate the process and understand the potential outcomes.

Please note, this article is general in nature and does not take into account your personal situation or circumstances. For further information please contact Kenney Legal at info@kenneylegal.com.au or contact us via our social media networks.