Challenging the validity of a will

Question:
Will I also have to pay the other side’s costs if I lose?
Answer:

Legal costs are incurred in any legal proceeding, with the general rule being that the successful party has their legal costs paid by the unsuccessful party. A proceeding involving a challenge to a Will is no different. However, in certain circumstances, the legal costs may be ordered to be paid out of the will-maker’s estate.

Is it therefore important that you obtain advice before undertaking a challenge to a Will so as to avoid any order being made against you for the payment of legal costs.

Question:
Are there any costs?
Answer:

You will incur legal costs to have legal representation if you decide to challenge a Will. The amount of costs will vary depending on the facts of the case. Mackinnon Jacobs Lawyers can advise you of the likely costs involved and provide you with a written estimate.

Question:
What evidence is required in challenging the validity of a Will?
Answer:

In cases involving questions concerning the will-maker’s testamentary capacity, medical evidence is crucial. Mackinnon Jacobs Lawyers can advise regarding the obtaining of necessary evidence and assist you in preparing the evidence for Court.

Question:
How do you challenge the validity of a Will?
Answer:

Challenging the validity of a Will usually involves a legal proceeding in the Supreme Court. Each case will depend on its facts and you should seek legal advice as soon as possible about your rights.

Question:
What happens if a Will is found to be invalid?
Answer:

An invalid Will has no effect. Any prior Will made by the will-maker will become their last Will. If there is no prior Will, the will-maker will be deemed to have died intestate (ie without making a Will) and there estate will be distributed under the rules of intestacy under the Administration and Probate Act.

Question:
What happens if the will-maker does not have testamentary capacity?
Answer:

If a will-maker does not have testamentary capacity, any Will they make while lacking capacity will be invalid and may be challenged on the grounds the will-make did not have capacity.

Question:
What is testamentary capacity?
Answer:

For any Will to be valid, the will-maker must know what they are making a Will, be aware of their estate, be aware of the persons they wish to benefit and be able to consider those persons who would normally be expected to receive an inheritance under their Will. This is called having testamentary capacity. A will-maker who suffers from mental disability or delusion may or may not have the necessary capacity to make a valid will. In some cases, a lack of testamentary capacity can be caused by the effect of medication.

Question:
Is a Will invalid if it does not have the criteria to be a formal Will?
Answer:

A Will may still be valid even if it does not meet the criteria to be a formal Will. However, the more the Will departs from the formality requirements, the less chance there is that the Court will allow the Will to be a valid informal Will.

As a minimum, for a Will to be a valid informal Will –

  • there must be a document which purports to record the testamentary intentions of the will-maker; and
  • the will-maker must have intended the document to be their will.
Question:
What are the requirements for a formal Will?
Answer:

Under the Wills Act 1997 (Vic) a formal Will must be:

  • in writing;
  • signed by the will-maker (but where the will-make is unable to sign the Will for any reason, it may be signed by another person in will-maker’s presence under their direction);
  • signed by the will-maker with the intention of executing a Will;
  • signed by the will-maker in the presence of two or more witnesses;
  • signed by at least two witness in the presence of the will-maker.
Question:
Can a Will be challenged?
Answer:

Yes. Generally speaking, a Will can be challenged in two ways.

First, the validity of a Will may be challenged. A Will may be invalid for a number of reasons, such as where the will-maker did not have the required mental capacity to make their Will or where they were unduly influenced or coerced to make their Will in a particular way (more info…).

Secondly, a person who has been left out of a Will or received a small inheritance may, in certain circumstances, contest the terms of a Will by way of a Testator’s Family Maintenance claim (more info…).