Challenging a Will in Melbourne, Victoria

Contesting a Will and Challenging a Will are two very different things.

Challenging a will involves questioning whether the will is legally valid. This is different from contesting a will for further provision and usually arises where there are serious concerns about how the will was made.

At Hentys Lawyers, our experienced estate litigation lawyers advise clients throughout Melbourne and Victoria on whether a will can be challenged and, if so, how to act quickly to protect their rights and interests.

What Does It Mean to Challenge a Will?

Challenging a will means disputing its legal validity. If successful, the will may be declared invalid, meaning it cannot be relied upon to distribute the deceased estate.

If a will is set aside:

An earlier valid will may apply, or
The estate may be distributed according to Victorian intestacy laws

Given the serious consequences, challenging a will requires strong legal grounds and careful preparation.

Grounds for Challenging a Will in Victoria

A will may be challenged where there are concerns that it was not made freely, properly, or lawfully. Common grounds include the following.

Lack of Testamentary Capacity

For a will to be valid, the testator must have had sufficient mental capacity at the time it was made. This includes understanding:

The nature and effect of making a will
The extent of their assets
Who may reasonably expect to benefit
The consequences of their decisions

If the testator lacked capacity due to dementia, illness, medication, or mental impairment, the will may be invalid.

Undue Influence or Coercion

A will must reflect the true intentions of the testator. If another person pressured, manipulated, or dominated the testator into making or changing a will, it may be challenged on the basis of undue influence.

These claims often arise in circumstances involving dependency, isolation, or a significant imbalance of power.

Fraud or Forgery

A will may be invalid if it was created or altered through fraudulent conduct. This includes:

Forged signatures
Altered documents
Misrepresenting the contents or effect of the will to the testator

If fraud or forgery is proven, the court may set the will aside entirely.

Failure to Comply With Legal Formalities

Under Victorian law, a will must meet specific formal requirements. Generally, a valid will must:

Be in writing
Be signed by the testator
Be witnessed by at least two adults present at the time of signing

Failure to meet these requirements may render the will invalid, although courts may admit informal wills in limited circumstances.

Challenging a Will in Victoria: Key Considerations

Navigating a Will dispute in Victoria involves various considerations:

Time Limits

Family provision claims must be filed within six months of Probate being granted, while other challenges have different deadlines. We recommend that you seek legal advice as early as possible after finding out about the death of a loved one to avoid missing critical deadlines and the possibility of you recovering some of those costs from the Estate.

Costs

The court may order legal costs to be paid from the Estate, but this is not always the case. We’ll provide a clear understanding of the potential costs before proceeding.

Emotional Impact

Challenging a Will can strain family relationships and bring about emotional turmoil. At Hentys, we understand the emotional impact of this process and are here to support you. We will help you weigh the emotional impact against your objectives and provide the care and understanding you need during this challenging time.

Why Choose Hentys Lawyers for Challenging a Will?

Our Will Dispute Lawyers Can Assist Across Melbourne & Victoria

At Hentys, we understand that challenging a Will is a sensitive and often emotional decision. Our experienced will dispute lawyers are dedicated to providing compassionate and expert legal support. We take a personalised approach to ensure we fully understand your concerns and work toward a fair outcome. If you’re considering challenging a Will, we encourage you to contact us for a confidential consultation.

With our extensive experience in Estate Litigation, we have successfully represented clients in a wide range of Will disputes in Melbourne and Victoria. We aim to minimise the stress, costs and uncertainty of legal disputes, guiding you every step of the way.

Frequently Asked Questions (FAQs) About Challenging a Will in Melbourne, Victoria

Under what circumstances may I Challenge a will?

In Melbourne, the most common reasons as to why a Will is challenged is because:

The Will-maker could not have made the Will at the time it was signed
The Will was the subject of fraud, forgery or made under the influence of others
There was an insufficiency and inappropriateness of witnesses to the signing of the Will
The Will was left unsigned

Are there any time limits for Challenging a Will?

If you are considering challenging a Will, it’s important to note that in Victoria, your application must be made:

Within six months after the date of the grant of Probate or Administration, OR
Three months from the time you give notice to the Estate.

In limited circumstances the Court may extend this time so long as the Estate has yet to be completely administrated. This extension, however, is not a guarantee.

What is Probate?

Probate means proof of the Will. Once the Will has been proven to the satisfaction of the Court – that is, the Supreme Court (Probate Division) agrees that it is the last valid Will of the deceased, probate is granted to the Executor of the Will. It authorises the Executor to administer the Estate. The Executor’s duties include paying debts of the estate, releasing assets and distributing those assets to the beneficiaries. A Will cannot be contested until Probate has been granted by the Supreme Court.

Am I eligible to Challenge a Will?

You may be eligible to challenge a Will if your relationship with the deceased falls under the following categories:

You are the husband or wife of the deceased person at the time of their death.
You were living in a facto relationship with the deceased at the time of their death (including same-sex partners)
You are a child of the deceased person.
You are the former husband or wife of the deceased person.
You were (at any particular time) wholly or partly dependent on the deceased person and, at any time, a member of the same household as the deceased person.
You are a grandchild of the deceased who was (at any particular time) wholly or partly dependent on them.
You had a close personal relationship with the deceased at the time of their death.

How is it determined whether a Will is valid or not?

When determining whether or not a Will is valid, the Court will consider the following questions:

Is it the last will made by the deceased?
Was the Will executed correctly?
Does the Will adequately provide for family members?
Did the Will-maker have sufficient mental capacity when the Will was executed?
Was the Will drawn up under undue influence?
Was the Will altered after it was originally signed?

What is undue influence in Challenging a Will?

If the Will-maker was assisted in drawing up the Will by someone who stands to gain a great deal from it, that person may have to prove to the court that there was no pressure, force or fear involved in making the Will.

It’s important to note that flattery and persuasion are not unlawful, so the court will not overturn a Will unless it considers undue influence has occurred. ‘Undue Influence’ means that the Will-maker’s mind was coerced to the extent that the resulting Will was contrary to the Will-maker’s real intentions.

A person challenging a Will by claiming that undue influence was involved must prove the fact with full details and supporting evidence. It is not a claim that should be brought lightly and can be costly to pursue.

Can I Challenge a Will and make a claim?

A Family Provision Claim can still be made, including Contesting the adequacy of a Will at the same time as Challenging a Will, irrespective of whether the Will was valid or the eligible person was mentioned in it or not.

What is mediation in Challenging a Will?

The Court is likely to order a compulsory mediation session before any formal hearing unless there are special reasons, such as the risk of violence.

A Mediation allows the parties to clarify any issues and attempt to formally resolve them before proceeding with full litigation and a judicial decision.

At Hentys, we understand that challenging a Will can be a confusing process, made all the more difficult due to the emotional circumstances. As a client of Hentys, we are committed to helping you make sense of the legalities of your case and assist you in lodging your claim within the imposed time restrictions.

What is the difference between Contesting a Will and Challenging a Will?

Contesting a Will and challenging a Will are two very different things. Contesting a Will is when you have been left out of Will or feel you have been treated unfairly by the Testator within their Will. Therefore, you launch a family provision claim. To Challenge a Will is to dispute a Will or to say that the Will itself should be struck out. These types of cases usually arise when the person who made the Will was suffering from a mentally degenerating disease or they were put under pressure to change their Will.

What is a Testamentary Capacity?

In the State of Victoria, (e.g Melbourne):

only adults 18 years or older have the capacity to create a Will (however, in some jurisdictions, minors in the military or are married have the right to make a Will).
adults are presumed to have testamentary capacity. It is only challenged in cases of dementia, insanity, under the influence of a substance or if they, in some other way, lacked the mental capacity to form a Will.
to challenge a Will based on mental capacity, you must be able to show that the Will-maker did not understand the consequences of making the Will at the time of its creation.

Under what circumstances can a Will be Challenged?

Fraud, Forgery and Undue Influence
This usually involves manipulating the vulnerable person into leaving all or much of the property to the manipulator. Across all jurisdictions, ‘Undue influence’ merely means that the person lacked the free will to make their own decisions or to bargain because of the manipulator.

As a result, the ‘Will’ becomes a document that does not record the true testamentary wishes of the Will-maker and thus will be found to be invalid.

Insufficient or Inappropriate Witnesses
In Victoria, the Will must be dated and signed by the Will-maker in the presence of at least two adult witnesses. If this does not occur, the Will could be void for incompleteness.

An Unsigned Will
In Victoria, in most cases, an unsigned Will is found to be invalid as it does not adhere to the requirements for execution of Wills as depicted in the Wills Act 1997.

For the exceptions to this rule, see the Page on whether an unsigned Will is still valid.

Unsure Whether a Will Can Be Challenged?

We can assess the circumstances and advise whether you have grounds to act.