Will Disputes

There are two main reasons for disputing a will.  The first reason is that a family member has received an insufficient inheritance, or has been left out of a will. The second reason is on the basis that the will is invalid.  If you believe that a will is invalid, our estate litigation team can help you challenge it.

Challenging validity

In our experience, the most common reason a person believes that a Will is invalid is because the Will maker lacked capacity to make a Will due to medical incapacity, such as dementia.

When making a Will it is necessary for the Will maker:

• to understand the effect of making a Will;
• to understand what assets he or she possesses;
• to appreciate which family members could make a claim against the estate and what moral obligations are owed to those people; and
• to not be affected by delusions which influence his or her decision-making.  

It is generally much harder to make such an argument that the Will maker lacked capacity if a lawyer prepared the Will, as lawyers are expected to be satisfied that the Will maker had capacity to make the Will at the time. 

Other reasons a Court may find that a Will is invalid include:

• The Will maker was subject to pressure by another person which was sufficient to cause the Will to not truly represent the wishes of the Will maker;
• The Will maker was not fully aware of the nature and contents of their Will; or
• The Will maker’s signature was forged.

The reasons a Court may find that a will is invalid include:

• the will maker lacked capacity to make a will due to medical incapacity such as dementia;
• the will maker was subject to pressure by another person which was sufficient to cause the will to not truly represent the wishes of the will maker;
• the will maker was not fully aware of the nature and contents of their will; or
• the will maker’s signature was forged.

Is there a time limit?

While there is no strict time limit to challenge the validity of a will, if a will has already been through probate it is more difficult to challenge it.  If you have concerns regarding the will, it is important that you seek advice from our estate litigation team as early as possible.   

We have offices in the city and at Tea Tree Gully for the convenience of clients.  In addition, for the elderly or infirm, visits can be made to clients at home or in hospital.

Call us on 08 8415 5000 or send an email to make an appointment.