Not happy with someones Will? Read how to make a successful challenge.

When can I challenge a Will?

There are two main ways to challenge a Will:

  • Making a claim that you have not been adequately provided for under the Will; (also referred to as making a ‘family provision claim’); or
  • Arguing that the Will is invalid – that some of the circumstances surrounding the making of the Will were not quite right.

We’ll address some of the burning questions relating to challenging Wills below. To discuss your concerns and options for getting what you are entitled to or to strengthen your own Will, get in touch with us. Call us on 1300 654 590 or email us.

How can I make a claim if I haven’t been adequately provided for under a Will?

If a Will is valid, but you believe you have not been given your fair share, or you expected to benefit from an estate but you have been left out – then you may be entitled to make a family provision claim (sometimes known as an application for a reallocation order, or ‘contesting the Will’).

In South Australia, this is done by making a claim under the Inheritance (Family Provision) Act 1972. A claim should be made within six months of the date on which probate is granted. In some circumstances, the Court may allow an extension of time, but it is best to make the claim within the six months.

Only certain people can make a family provision claim:

  • Spouse
  • Ex-spouse
  • Domestic partner
  • Biological/adopted child
  • Biological grandchild
  • Child of spouse or domestic partner maintained by the deceased
  • Biological parent who cared for or maintained the deceased
  • Biological siblings who cared for or maintained the deceased

Not all assets of the deceased can be contested in this way – for example, the way in which the person’s superannuation has been dealt with cannot be challenged under this mechanism, unless the superannuation was distributed to the deceased’s Estate.

What happens when I make a family provision claim?

A person who is entitled to make a claim can argue that they have been left without adequate provision for his or her proper maintenance, education and advancement in life.

Once a claim is made, the Court will assess the extent to which the person’s maintenance, education and advancement in life have been provided for under the Will.

If the Court considers that the provision is inadequate, then it will consider what the person should have received out of the Estate.

The Court will look at a number of factors in this consideration, including:

  • How big is the Estate?
  • What are the applicant’s circumstances? i.e their age, health and financial position
  • What was the relationship between the deceased and the applicant?

It is not a question of whether you have received as much as another person under the Will – it is a question of whether you have received enough for your proper maintenance, education and advancement in life.

For example, the Court will not simply re-allocate an Estate so that each of the deceased’s children gets the same distribution – instead, the Court will go through the process to determine how much each sibling should have received, relative to their own situations and their relationship with the deceased parent.

This also means that a family provision claim may be made where each of the deceased’s children received an equal distribution, but the circumstances of one of the children is such that they require a greater amount for their maintenance, education and advancement in life.

How can I protect my Estate from having a Family Provision Claim made?

You cannot guarantee that a family provision claim is not made.

However, if a person is considering leaving a family member out of the Will for a particular reason, then there are a number of steps they can take to reduce the likelihood that the person will make a claim:

  • If you are on speaking terms with that person: then explain the reason why you have not provided for them in the Will. It may be that you have already given them ‘their share’ of your Estate during your lifetime – for example, by giving them the family business;
  • If you are not on speaking terms with that person: then leave a detailed statement explaining why you have left only a small amount, or nothing, to that person. This will not prevent them from making a claim, but will assist your Executors in explaining your decision to the Court;
  • If you have the resources: then leave them an amount which you consider will provide for them appropriately, even though it may not be the percentage of your total Estate that they would expect to receive.

Can I state that if a challenge is made, then the person challenging gets nothing?

No. This is called a ‘no-contest’ clause. A provision of this nature will not be effective.

In what circumstances can I claim that a Will is invalid?

There are a number of circumstances that might cause a Will to be invalid, including:

  • The Will was not signed properly, as required by the legislation – e.g. the person did not sign it, or their signature was not witnessed by two adult witnesses;
  • The person lacked the mental capacity to make a Will;
  • The person did not understand the Will when they signed it – e.g. the Will is in a language which they could not read;
  • One of the signatures on the Will has been forged;
  • The Will has been revoked – either expressly, or by the deceased having been married or divorced since making the Will;
  • The person was under the undue influence of another in making the Will.

Who can challenge the validity of a Will?

Only certain people are able to challenge the validity of a Will. They are:

  • A person who was named as a beneficiary under a previous Will of the deceased and who is disadvantaged by the making of the new Will;
  • A person who would have been entitled to more under the intestacy laws than they are under the deceased’s Will;
  • A person who had been the executor under a previous Will, but not under the deceased’s later Will.

What is the process for challenging the Will?

Concerns regarding the validity of the Will should be raised before probate is granted.

If probate has been granted, then you must apply to have it revoked in order to challenge the Will’s validity – this is only possible in limited circumstances.

If you think you may have grounds to challenge a Will, then you should immediately lodge a caveat over the Estate.

A caveat over an Estate is similar to a caveat over property. By lodging a caveat over the Estate, you can make sure that you are notified before probate is granted.

This provides you with the opportunity for your views to be heard before a grant of probate is made. Where concerns of validity are raised, probate will only be granted after a full Court hearing, where all parties have the chance to present their argument and evidence to the Court.

How do I know if someone had mental capacity when they changed their Will?

A Will is invalid if the person making it lacked mental capacity at the time they executed the Will.

It is up to the person claiming that the deceased did not have mental capacity to prove that this is the case.

There are a generally four things to be shown when a person executes a Will, to show that they have the capacity to understand it and intend for it to be effective:

  • They must understand that they are executing a Will and what that means;
  • They must be able to remember and understand generally the nature and extent of the assets that they hold;
  • They must comprehend and appreciate their moral obligations towards family and friends; and
  • They must be of sound mind.

A lack of mental capacity is difficult to prove; there are cases where persons suffering from Alzheimer’s disease or dementia have been found to have executed a valid Will during lucid moments.

A medical expert report will generally be required in order to argue that the deceased lacked the mental capacity, at the time of making the Will, such that the Will is not valid.

What can I do if I think my sister bullied my father into changing his Will?

This raises the issue of ‘undue influence’. If the person making the Will was coerced into making their Will in a particular way, and this coercion results in a Will that contains terms that the person did not intend, then the Will may be able to be set aside for undue influence.

There are two key aspects to undue influence:

  • A party must have exercised influence over another person for the purpose of securing a benefit; and
  • The person would actually receive that benefit under the Will.

The person alleging undue influence must prove these two things, showing that the Will was made as a result of the beneficiary overbearing the person making the Will, so that it was not made freely and independently.

The fact that a beneficiary has been persuasive or has had some influence in the making of the Will is not enough for the Courts to find that there has been undue influence.

If the Court finds that there has been undue influence, then the Will is invalid to the extent of the undue influence – if only part of the Will is affected, then the Courts will remove only that part and leave the rest of the Will in effect.

What happens if a person leaves a Will that has not been properly signed?

The Courts have the power to treat a document as being valid, even if it does not meet the strict requirements set out in the law.

In South Australia, the Court can grant probate on a document that has not been formally signed, where:

  • The Court is satisfied that the document expresses testamentary intentions of the deceased; and
  • The deceased intended the document to constitute their Will.

This is a costly and lengthy process – it is always best to take all steps to ensure your Will is properly executed, to prevent your Estate from being open to challenge based on formalities.

Aren’t I automatically entitled to my spouse’s assets when they die?

No. Your entitlement to your spouse’s assets depends on a number of things:

  • How the assets are held – if assets are held as joint tenants, then the deceased’s interest will pass to the other joint tenant. If they are held as tenants in common, then the deceased’s interest will be dealt with through their Estate;
  • Whether the deceased had a Will or not – if a person dies intestate, then their assets are dealt with under the Administration and Probate Act 1919. We discussed this in an earlier program – typically, the assets will go to the spouse (and children, if any).
  • If the person leaves a Will – then the spouse will receive the distributions set out in that Will, or distributions as varied by the Court if a family provision claim is made, or distributions under the intestacy laws if the Will is found to be invalid.

What happens if the Court finds that a Will is invalid?

If a Will is found to be invalid, and there is no earlier valid Will, then the Estate is treated as an intestate Estate – and the assets will be dealt with under the intestate legislation.

The exact distribution of the assets will depend upon the deceased’s family, in the following order of priority:

  • the spouse or domestic partner, plus children (if the value of the estate exceeds $100,000);
  • the children (if no spouse or domestic partner)
  • parents;
  • brothers and sisters;
  • grandparents;
  • uncles and aunts;
  • the Crown

A domestic partner is a person with whom the deceased has lived for at least 3 of the last 4 years or a person with whom they live and have had a child with.

If the deceased had both a spouse and a domestic partner, then each is entitled to an equal share of the property that one spouse or partner would have otherwise received.

In some cases, the Court can rectify a Will, if it is satisfied that the Will does not accurately reflect the testamentary intentions of the deceased. In this case, the Court will make an order in terms of what they consider to be the proper expression of the deceased’s intentions.

How much does it cost to challenge a Will? Who pays?

The legal costs involved in challenging a Will depend upon the complexity of the claims – there is no ball park figure that covers all scenarios.

Where the Will is challenged by way of a family provision claim, the Court will decide on the issue of costs – generally, where the application is successful, the Court will order the Estate to pay the applicant’s costs. Where the application is unsuccessful, the costs of the Executor are usually paid for by the Estate and the Court will look at the particular circumstances to decide on whether the Estate pays the applicant’s costs.

Where the validity of a Will has been challenged, it is generally the unsuccessful party who pays all of the costs – it is only in very limited circumstances that the Estate will have to pay legal costs.

What are the alternatives to going to Court?

Mediation is an alternative to going to Court and can be both less expensive and less time consuming for all parties involved.

If a decision is reached by mediation then it can be effected by entering into a Deed of Family Arrangement. This Deed can be entered into where all of the beneficiaries under a Will are adults with full mental capacity and allows them to unanimously agree to alter the express wishes set out in the Will of the deceased.

A Deed of Family Administration can have stamp duty and capital gains tax consequences and should not be entered into without advice on these issues.

Call us on 1300 654 590 to discuss your concerns and options for getting what you are entitled to.

The information contained in this article is accurate at time of editing – 16 March 2023.

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