Can your Will be challenged?

Yes. The validity of a Will can be challenged for a number of reasons, including the following scenarios:

  • It is alleged that it was made under pressure from others.
  • Where the person did not have testamentary capacity at the time of making the Will.
  • Where the Will was not executed according to the statutory requirements.

In addition, the Administration and Probate Act 1958 allows for an ‘eligible person’ to make a claim against the deceased’s estate. An ‘eligible person’ is limited to a spouse, child, stepchild, former spouse (if former spouse is entitled to take proceedings against the deceased, or has commenced proceedings) or a child that believes he or she is a child of the deceased or was treated as a child.   An ‘eligible person’ also extends to people that were dependent on the deceased, but are limited to a registered caring partner, a grandchild, a spouse or partner of a child or a person who was a member of the deceased’s household.

There are many factors the Court will take into account when determining whether to make a family provision order.  The Court must have regard to the testator’s Will, any evidence of the testator’s reasons for making the dispositions in the Will and any other evidence of the testator’s intentions in relation to providing for the ‘eligible person.

The Court will be reluctant to interfere with a testator’s wishes and an ‘eligible person’ must show good reason why a deceased person should have provided for them in their Will.