We are often asked about contesting a will after probate granted. Generally, the people asking this question are family members of a deceased who have been left out of a Will or have received inadequate provision from the estate. If you consider yourself in this situation, then speak to our probate lawyers today.
- Contesting a Will before a grant of probate
- Contesting a Will after probate granted
- Can an executor contest a Will?
Contesting a Will Before a Grant of Probate
One of the most common grounds for contesting a Will before a grant of probate is whether the Will is legally valid.
In order to make a valid Will, the Testator, at the time of executing a Will, must have attained the age of 18 years, must know and approve the contents of a Will, must have testamentary capacity and must have exercised their free will to prepare and execute the Will.
To meet the Banks and Goodfellow test, the testator must be of sound mind, memory and understanding to make a Will. In order to have the requisite soundness of mind the Testator must:
- Understand the nature and effect of a Will;
- Understand the nature and extent of their property;
- Comprehend and appreciate the claims to which they ought to give effect; and
- Be suffering from no disorder of the mind or insane delusion that would result in an unwanted disposition.
Circumstances That May Indicate Lack of Capacity
There are a number of different circumstances around the making of a Will that might bring into question the validity of a Will. The Will maker’s age and medical health (including their mental health and the effect of any medication) are examples of this, as they might impact on testamentary capacity. As a result, there might be suspicious circumstances around the preparation of the Will or suggestions of undue influence or coercion. If proven, any or all of these factors might lead to the Supreme Court determining that a Will is invalid.
Who Can Contest a Will Before a Grant of Probate?
A family member of the deceased or someone who might have reasonably expected to share in the distribution of the estate could make a claim to have the Will set aside because it is invalid. A challenge to the validity of a Will must be made after the date of death of the deceased, but before a Grant of Probate is made.
If a Will is found by the Supreme Court to be invalid, then the Court might revert to an earlier Will or it might be the case that the deceased will have died intestate, without a valid will.
Contesting a Will After Probate Granted
Contesting a Will after Probate granted is time critical as strict time limits apply.
A Grant of Probate is essentially the certification of the Supreme Court that a Will is the last valid Will of a deceased person. A Grant of Probate authorises the Executor to call in the assets of the estate and distribute them according to the terms of the Will.
Contesting a Will after probate granted can be done by family members of the deceased who are beneficiaries of a Will and certain other family members of the deceased who may not be named as beneficiaries of the estate.
Contesting a Will via a Family Provision Claim
These claims are referred to as a Family Provision Claim because they are brought pursuant to the Inheritance (Family Provision) Act, 1972. The Inheritance Family Provision Act sets out the group of people who can contest the distribution of the estate because they have been left out of the will or they feel that they have received inadequate provision. These include a spouse, former spouse, defacto partner, domestic partner, child, grandchild and in some cases, a sibling or parent. The person entitled to claim is generally someone who the deceased person had a moral duty to make provision for in their Will.
When making a claim for further provision from the estate of a deceased person, an action in the Supreme Court must be commenced within six (6) months from the date of the Grant of Probate. While extensions of time are granted in limited circumstances, generally the time limit is strictly applied. Where a prospective claimant is considering contesting a will after probate granted, it is very important for them to seek legal advice from a wills and estates lawyer as soon as possible to ensure they do not pass the time limit.
Legal costs are always an issue in any contested estate. Most often, where a claimant has acted reasonably, legal costs are paid from the estate. However, it is in the interests of all beneficiaries to minimise legal costs as they reduce the amount available to all beneficiaries. If costs in a contested estate cannot be agreed upon, it may be necessary to see a Court order.
Can an Executor Contest a Will?
An Executor has a duty to propound all testamentary documents that come to their attention unless there is doubt about their validity.
If there is real doubt about the validity of a Will because of lack of testamentary capacity or knowledge and approval, an Executor should not propound a Will. In circumstances such as this, an Executor might make an Application for Orders and Directions in the Supreme Court before a Grant of Probate is made.
After a Grant of Probate, the Executor is obligated to distribute the estate in accordance with the terms of the Will. Exceptions include where the beneficiaries have signed a Deed of Family Arrangement or the Supreme Court has ordered the Executor to distribute the estate in a different manner.
In a family provision claim, the Executor takes a minor role. However, if the Executor is also an aggrieved beneficiary then in a family provision claim an Executor might also contest the will after the Grant of Probate has been made.
If you are thinking about contesting a Will after Probate granted or if you want further information please contact Michelle on 8362 6400 or email Michelle Crichton. Join our mailing list to receive updates and advice on current issues.
People also ask:
The best way to stop someone contesting a Will in Australia is to obtain legal advice at the time of making your Will. A will made with a solicitor will be the most effective way to stop someone contesting the validity of the Will. A solicitor will make sure that the will is made in accordance with the requirements of the Wills Act, 1936 and also test that the testator has legal capacity at the time of executing the Will. A solicitor will also provide advice in regard to who might be able to challenge the distribution of the estate and suggest ways of preventing the challenge.
A Will can be contested. There are generally two bases upon which a Will can be contested. Firstly, a Will can be contested on the basis that the Will is invalid because at the time of making the Will the testator lacked the requisite legal capacity, acted under duress or undue influence, or there were suspicious circumstances surrounding the making of the will. The second basis is that the Will maker failed to make adequate provision for a person who they had a moral obligation to provide for from their estate.
Most often, to challenge a Will it is necessary to issue the Executor of the estate with a demand setting out a statement of claim. If it is not possible to resolve a claim by negotiation, it may be necessary to start a legal action in the Supreme Court. Sometimes, to ensure that the estate is not distributed it will be advisable to lodge a caveat against the Grant of Probate being made. If you want to challenge a will you should seek legal advice.