Challenging A Will

In Victoria, a person who has an interest in a deceased estate can challenge the validity of the deceased’s will in the Supreme Court. This can be done on a number of grounds, including that the deceased lacked testamentary capacity when the will was made or that the will is a forgery. This page deals with challenging a will in Victoria.

Who can challenge a will in Victoria?

A person may challenge a will in Victoria if they are:

• A beneficiary under a previous will;
• A relative who would receive a share in the estate if the deceased person died intestate;
• A person who has a relevant interest (receipt of a share or benefit) in the estate which will be otherwise affected by the grant;
• A person who would otherwise receive a share of the estate if the will was found to be invalid.

Grounds for challenging a will

The most common grounds for challenging a will are set out below.

Testamentary capacity

A will can be challenged on the basis that the testator lacked testamentary capacity. If a person lacks capacity when they are executing a will, a will is invalid.

The test for testamentary capacity is set out in the 1870 case of Banks v Goodfellow 5QB 549 at 565. In summary, there are four things that must be fulfilled at the time a person signs his or her will. The person must:

• Understand that he or she is making a will and what that means;
• Recall the nature and extent of their property in general;
• Understand and appreciate any moral obligations they may have towards family, for instance understand who may have claims on their estate; and
• Not be affected by a disorder of the mind or delusion to the extent that the will made would not have been made if the will maker was of sound mind.

Fraud

A will can be challenged on the basis that there was fraud in its execution. The court will need to be convinced that fraud occurred, that the fraudulent conduct had a direct effect on the making of the will and that the fraudulent conduct was committed by a beneficiary for the sole purpose of receiving a benefit under the will.

Undue influence

A will can be challenged on the basis that the testator was subjected to undue influence. If you can establish that a person made their will under undue influence, a court may declare the will to be invalid. Undue influence means that the testator was forced to make a will that did not reflect their true wishes. Persuasion is not enough to establish undue influence.

Forgery

A will may be challenged on the basis that it is a forgery. This requires evidence that the will was made by someone else or signed by someone else and not by the testator.

The person who made the will did not know and approve its contents

When a person makes a will, they are presumed to have known and approved the contents. A will can be challenged on the basis that the testator did not know and approve its contents, but a challenge on this ground requires evidence to overcome this presumption.

Commencing proceedings

The first step towards challenging a will in Victoria is to find out if probate has been granted for the estate. To do so, you can visit the Probate Applications Index of the Supreme Court of Victoria website.

If probate has not been applied for, you can search the Probate Online Advertising System for any advertised intention of an executor or administrator to apply for a grant of Probate or Letters of Administration. The advertisement of an intention to apply for a grant of probate or Letters of Administration is a mandatory requirement prior to filing the application itself. A search will tell you whether steps have been taken to prepare an application for a grant by an executor or administrator.

If probate has not been granted, a person wanting to challenge the will should file a probate caveat. This prevents the court from granting probate until the caveat has been dealt with. If a caveat is challenged by an executor or administrator, the caveator will need to file material (an affidavit with corroborating documentation) supporting their contention that the will is invalid. This material will generally be challenged by an affidavit in reply by the executor or administrator. The material filed by the parties will be assessed by a judge who will then make a determination on the legitimacy of the caveat and appropriate orders.

Revoking a grant of probate

Probate can be revoked after a grant has been made in certain circumstances such as:

• Where a person who is missing and is presumed to be dead is found alive;
• Where a will was admitted to probate and the deceased married, or remarried, after the date of that will;
• Where a later will is found after an earlier one has been lodged for probate;
• Where a forgery, or false statement made to seek the grant of probate, is proved;
• Where the appointed executor/administrator is found not to be a “fit and proper person” by virtue of fraud, maladministration, negligence or criminal action as against the estate.

Costs of challenging a will

The costs of challenging a will are at the discretion of the court. However, the general guiding principle is that the losing party may end up paying for a portion of the other side’s costs based on court scale rates. If the action is considered to be “frivolous or vexatious”, the court may be inclined to order costs against the “vexatious litigant” on an “indemnity basis”. This means that that party will pay all of the other party’s costs and not just a portion of them.  It is therefore recommended that you have your case thoroughly assessed before you consider challenging a will.

In some cases, where a person with an interest in the estate challenges a will and is unsuccessful in that challenge, the court may award that person’s legal costs from the estate. Again, this is a discretion of the court.

An order for costs is subject to the basis on which the will is challenged and whether or not that challenge is successful. Costs in such challenges are not guaranteed to come out of the estate.

If you are considering a challenge to a will, please contact one of our lawyers to discuss the merits of your matter and associated costs issues.

Time limits for challenging a will

In Victoria, a challenge to the validity of a will must be done:

• by lodgement of a caveat prior to probate being applied for by the executor; or
• prior to the expiry of six months from the date probate has been granted to the executor (revocation).

If you seek to revoke either a grant of probate, or to challenge the will, after probate has been granted, it is recommended that you act quickly. Such an application is filed in the Supreme Court with the Trusts, Equity and Probate List and requires detailed material to support it. Taking such a step is not without its risks if the material filed in support of a claim is merely speculative or suggestive.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.