Challenging a Will (ACT)

A will is a legal document that a testator (the person making a will) prepares to convey their wishes for their estate after their death. In the ACT, someone with an interest in the deceased estate can challenge the validity of this will. Challenging a will is a complex legal process, requiring claimants to meet specific eligibility and substantiation criteria. This article explores the grounds for challenging a will in the ACT, the processes involved, and the factors courts consider when deciding such cases.

Grounds for challenging the validity of a will

When someone challenges a will, they are arguing that probate should not be granted (or should be revoked) because the will itself is not legally valid. This is quite distinct from contesting a will, which is a claim made by a person who is seeking greater provision from the estate. To challenge the validity of a will, the claimant must establish that the document does not meet the legal requirements for a valid will. Common grounds for challenging the validity of a will include:

Lack of testamentary capacity

A person must have testamentary capacity to make a valid will. This means they must:

• understand the nature and effect of the will
• comprehend the extent of their assets, and
• be aware of any moral obligations to family or dependents.

If the testator lacked capacity due to illness, mental impairment, or undue influence, their will may be declared invalid. Medical records, witness testimony, and expert opinions are often used as evidence in these cases.

Undue influence

A will may be invalid if the testator was coerced or pressured into making decisions in the will that did not reflect their true intentions. Undue influence often involves situations where a beneficiary manipulates a vulnerable testator for personal gain. Proving undue influence is challenging, as it requires demonstrating that the coercion overpowered the testator’s free will.

Fraud or forgery

If a will was created through fraud or forgery, it can be declared invalid. For example, someone might forge the testator’s signature on a codicil or mislead the testator into signing a will by pretending that it is another document. Evidence such as handwriting analysis or witness testimony is crucial in proving fraud or forgery, but it can be very difficult to establish that a deceased person was misled into signing a document that did not reflect their testamentary wishes.

Non-compliance with formalities

In the ACT, a will must meet specific formal requirements under the Wills Act 1968 in that it must be:

• made in writing
• signed by the testator and
• witnessed and signed by at least two adults (who have legal and visual capacity).

If these formalities are not followed, the will may be invalid. However, courts have discretion to uphold an informal will if it can be proven that it reflects the deceased’s true intentions.

Revocation

If a will is presented for probate, it can be challenged on the basis that it has been lawfully revoked. A will can be revoked by the execution of a later will, physical destruction of the will by the testator (for example, tearing the will up), or by the subsequent marriage of the testator (unless the will was made in contemplation of marriage).

The process of challenging a will

Challenging a will is a complex and often emotional process. Seeking legal advice ensures that you understand your rights, the strength of your case, and the likely costs involved. The first step when challenging a will in the ACT is to contact the Supreme Court to find out whether a grant of probate has already been issued for the will. If not, the next step is to file a probate caveat to prevent the court granting probate until such time as the issue is resolved.

One of the parties will then usually begin proceedings and allow the court to determine the outcome. The party who is applying for probate is often the person to commence court proceedings, with the caveator filing a defence to explain why the will is invalid. Both parties then prepare affidavit documents in support of their case which will be reviewed by the judge.

Who can challenge a will?

Under Rule 3013 of the Court Procedures Rules 2006, the only people in the ACT who can lodge a probate caveat, and thereby challenge a will, are those with an “interest in the estate of the deceased estate”. In practice, those who have an interest in the estate typically include beneficiaries of the current or prior wills of the deceased, and those who would be entitled to a share of the deceased estate under intestacy provisions.

Time limits

Unlike the strict time limits for contesting a will (within six months of the probate date), there is no time limit to challenge the validity of a will. In fact, it is possible to challenge a grant of probate even after it has been issued. However, it is a much more straightforward process to challenge a will before probate is granted and bequests distributed to the beneficiaries.

Risks and costs

Challenging a will can be expensive, particularly if the matter goes to court. Legal fees may be deducted from the estate, but unsuccessful claimants may be ordered to pay the other party’s costs. This financial risk should be carefully weighed before proceeding. There is also the emotional toll to consider. Challenging a will often strains family relationships, making it essential to approach the process with a clear understanding of the potential consequences.

If you are considering challenging a will, it is essential to seek professional advice. With proper guidance, it is possible to achieve a fair outcome that respects the rights of all parties involved. Get in touch with the experienced solicitors at Go To Court Lawyers on 1300 636 846 for any legal assistance.