What Do You Need to Know If You Want to Contest a Will?

24 February 2023
 Categories: Law, Blog


Have you been named in someone's will, or feel that you should have been included? If so, you may be wondering if it is possible to contest the will. It is possible to do this in Australia, and there are various ways to proceed. So what do you need to know about the process?

The Requirements for Challenging a Will

Firstly, understand that the process could be arduous. Depending on the situation, it may be difficult to meet all of the requirements necessary for challenging a will. To successfully challenge a will, there must be evidence that either:

  • The deceased lacked testamentary capacity at the time of making their will, or
  • The deceased was unduly influenced by another person when making their decisions about how to distribute their estate.

If either of these criteria is met, then there are grounds for contesting the validity of the will. It is important to note that in some cases, it may not be possible for any challenge to succeed because certain conditions must also be met in order for a successful outcome. These include having sufficient evidence of undue influence or lack of testamentary capacity and adhering to strict deadlines and procedures under relevant legislation. For example, you may need to file notices with the Supreme Court within prescribed timeframes.

It is highly recommended that anyone considering challenging a will seek legal advice before taking action. That way, they can make sure they meet all relevant requirements and increase their chances of success.

How to Contest a Will After Probate Has Been Granted

Probate is granted when an executor applies for permission from the court in order to administer the deceased estate according to their wishes as set out in the will. Contesting probate means asking the court not to grant probate because there is something wrong with either the contents or execution of the will itself (such as fraud or lack of testamentary capacity). Once probate has been granted, it becomes more difficult to contest the will. For example, it may be hard to access evidence and other factors relating to the delay, the lengthy passage of time since death etc.

What to Do Next

Contesting a will can lead to emotional distress and financial hardship. This is why it should only be done as a last resort after all other options (such as negotiation) have been exhausted. However, if you believe your rights have been unfairly disregarded, you should act as soon as possible. Get in touch with a lawyer with knowledge of wills and estates for their advice.