Challenging the validity of a Will

Wills and Estates: 18 March 2019

Wills & Estates Disputes FAQ

On what grounds can a Will be declared invalid?

A Will may be declared invalid if one or more of the following grounds exist:

• the deceased lacked the necessary capacity to make the Will (for example if the deceased suffered from dementia or was otherwise of unsound mind);
• the deceased was unduly influenced in making the Will;
• the deceased did not know or approve of the contents of the Will;
• the deceased did not sign the Will, or the signature was fraudulent;
• the Will was not signed properly, or tampered with after signing;
• there were suspicious circumstances surrounding the making of the Will; or
• the deceased revoked the Will, or made a later valid Will.

What are the consequences if the Will is invalid?

If the deceased's last Will is found to be invalid, then the last valid Will made by the deceased would apply. If there is no previous valid Will, then the deceased's estate will be distributed in accordance with the statutory scheme under intestacy.

Who can challenge the validity of a Will?

Any person who is a beneficiary under the deceased's previous Will, or would be a beneficiary under an intestacy, is entitled to challenge the validity of a Will.

What is the procedure to challenge the validity of the Will?

A caveat must be lodged in the Supreme Court Probate Office prior to the Grant of Probate being made. Specialist legal advice should be sought prior to lodging a caveat, as the caveator (person who lodged the caveat) may be required to pay the estate's legal costs if there are no reasonable grounds on which the Will could be contested.