Challenging a Will

There are a number of ways that a Will can be challenged:

  • An eligible person can make a Family Provision claim under the Succession Act 2006
  • The validity of the Will can be challenged

 

Family Provision claim

An eligible person who believes that they have not been provided with adequate provision in a Will can make a claim to the Supreme Court for a share, or a greater share, of an Estate.

An eligible person is one of the following:

  • Wife or husband of the deceased at the date of death
  • De facto of the deceased at the date of death
  • Child of the deceased
  • Former wife or husband of the deceased
  • Someone who was, at some time, partly or wholly dependent on the deceased and was, at some time, a member of the same household as the deceased
  • A grandchild of the deceased who was, at some time, partly or wholly dependent on the deceased
  • Someone who was living in a close personal relationship with the deceased at the date of death

A Family Provision claim must be filed in the Supreme Court within 12 months from date of death.

As well as being an eligible person you must also be able to demonstrate that you have ‘need’ for provision, or further provision, from the estate.

 

Validity of the Will 

A Will can be challenged on the following grounds:

  • Capacity – if the deceased lacked testamentary capacity at the time they signed their Will
  • Undue influence – if someone exerted undue influence over the deceased in relation to the contents of their Will or the signing of their Will
  • Fraud or forgery – if the Will of the deceased was obtained by fraud or forged by someone else

 

If you would like more information about challenging a Will please contact us.

Suzanne Young

Special Counsel

syoung@mtpartners.com.au

 

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