There are some situations where a person may challenge the Will of a deceased person, but these claims must be brought within 12 months of the granting of Probate by the Court.

Potential grounds for challenging a Will include inadequate provision, a person has not been given something they were promised, property relationship claims, testamentary capacity and undue influence.

Inadequate Provision

A spouse or civil union partner, de facto partner, child, grandchild or parent may have a claim to challenge a Will under the Family Protection Act 1955. These claims are based on inadequate provision, which means the Will-maker has not provided for a necessary person in their Will sufficiently, or at all.

Claims by step-children and parents will only be allowed in some cases. For example, if the Will-maker had assumed financial responsibilities of the person. In particular, a parent cannot make a claim if a Will-maker’s spouse, civil union or de facto partner, or child of the deceased’s relationship, are alive.

Testamentary promises

A person may also make a claim under the Testamentary Promises Act 1949, if they were promised something by the Will-maker which was not provided for in the Will. For example, where the person has provided services to the Will-maker and has not been provided any remuneration.

Relationship property

The Property Relationships Act 1976 allows a spouse, civil union or de facto partner to bring a claim challenging a Will. The Act stipulates a general presumption that relationship property is split equally. If the Will-maker has not done so, it may give rise to a claim to challenge the Will.

Legal validity

There are two further grounds to challenge a Will, which relate to a Will’s legal validity: testamentary capacity and undue influence.

A claim may be brought if there is concern that the Will-maker did not have testamentary capacity when making and signing their Will. The law requires that any person making a Will is able to make sound decisions.

If this is not the case, for example if the Will-maker was suffering from a mental or physical illness that impaired their judgment, a claim can be brought to declare the Will invalid.

Finally, a Will can be challenged if it was created by a person under undue influence. Undue influence may be claimed where there is concern that a Will-maker was coerced into signing a Will. The courts may declare the Will invalid, as it is considered that the Will-maker did not properly consent to the Will.

It is important to have a Will in order to make sure your property is divided how you want. If you are unsure of your options, it pays to seek advice from a professional with experience in the area. 

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Shaun Cousins and Hunter Flanagan-Connors