Contesting a Will

Australia’s ageing population and the relative wealth of the baby boomer generation has resulted in a recent increase in estate disputes involving allegations of lack of testamentary capacity and elder abuse.

For a Will to be valid, the Will-maker must have had testamentary capacity. In general terms, this means that the testator, at the time of making their Will, must have understood what a Will is, known what their assets were, appreciated who was in their family and any other person who would should have been considered when making their Will, and not be suffering any mental disorder that affected their decision-making in regards to their Will.

In addition to having testamentary capacity, a person must also have made their Will voluntarily, without coercion or undue influence.

If there are doubts about whether a person had the mental capacity to make or amend their Will, or that they may have made or changed their Will as a result of undue influence, then the Court may need to decide whether the Will is valid before a Grant of Probate can be made.

A Will can also be invalid if it was not signed and witnessed according to legal requirements. When a deceased person leaves a document that they intended to be their Will, but it does not meet the legal requirements, an application can be made to the Court to declare the document as an ‘Informal Will’.

Except in special circumstances, the administration and distribution of the estate is put on hold until the Court decides whether the Will is valid and Probate or Letters of Administration are granted.

While it is ultimately up to the court to decide whether a Will is valid, alternative dispute resolution is an increasingly significant feature of contested probate disputes and, in most cases, the Court will require the parties to participate in mediation before a Court hearing.

Whether you have concerns about the validity of a Will, or you are an executor defending a Will, Tetlow Legal’s specialist estate lawyers can provide you with expert advice about the validity of the Will, the legal process and evidentiary requirements for a contested probate application and your options for negotiation and mediation.

If you need any assistance contact one of our lawyers at [email protected] or call 02 6140 3263 for a no-obligation discussion and for expert legal advice.