People often need to challenge the contents of a Will; however, it can be difficult to know where to start. Firstly, the applicable laws vary from state to state. Secondly, it depends on whether you want to challenge a Will based on its contents or validity. It’s important to identify the correct type of challenge as this also affects the process.
Challenging a Will
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Challenging the contents of a Will
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How we help you
We have vast experience in Will disputes around Australia – and we can help you too. You can talk to us about any issues with Wills, including:
- What to do if a family member is left out of a Will
- What to do if you feel someone haven’t been adequately provided for in a Will
- You are not sure of the different provisions state-to-state
- You want to challenge a Will’s validity
- Any other issues that may arise during administration of an estate.
We offer a range of fee options depending on your circumstances including deferred payment and speculative (no win no fee) arrangements.
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Family Provision Applications
A Will may be challenged if an ‘eligible person’ is left out of a Will or where the Will does not adequately provide for the needs of that person. This type of challenge is known as a family provision application (FPA).
If someone files an FPA, there are many factors that are relevant for the Court to consider. These include the size of the estate, the financial position of the person making the claim and that person’s relationship with the deceased person.
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Thinking of Challenging a Will?
Download our checklist and answer the questions and we’ll give your our views on the likelihood of your success.
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Arrangements differ state to state
The types of persons who are eligible to file an FPA differs from state-to-state. In Queensland, only a person’s spouse/de facto, child (including step and adopted child) and certain dependents can make a claim for further provision. Timing also differs:
Notice (of a person’s intention to challenge) must be given to the estate representative within 6 months of the date of death and the FPA must be filed in Court within 9 months of the date of death.
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The FPA must be filed within 12 months of the date of death.
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The FPA must be filed within 6 months of a grant being made by the Court.
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The FPA must be filed within 3 months of a grant being made by the Court.
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The FPA must be filed within 12 months of a grant being made by the Court.
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Challenging the validity of a Will
A Court might declare that a Will is invalid for many reasons. For example, if it’s proved that the Will-maker did not have the necessary legal and mental capacity at the time that the Will was created (e.g. if the person had advanced dementia).
A Will could also be declared invalid if the person who apparently made it did not know or approve of the contents. That is, if the Will-maker was coerced or influenced into making their Will in a certain way, or if the Will was forged.
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Plan your next move
If you need advice about challenging a Will in Australia, please contact our friendly will dispute team on +61 7 3001 2999 for your free no obligation 45 minute appraisal.
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Meet our Estate Litigation team
Delivering tailored and personal legal solutions
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Related Posts
21 April 2015
Case Studies
Applicant And His Solicitor Ordered to Pay Costs of Unsuccessful Will Challenge
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