The validity of your Will can be challenged after you die if:
- you did not have the capacity to make a Will at the time you signed it
- your Will was not drafted and signed according to law
- one of your witnesses will inherit under the Will
- you made the Will under the influence of others
- a person you had a responsibility to provide for believes you haven't left them a fair share of your assets.
Other disputes about a Will
Other common disputes about Wills are:
- removing executors or trustees
- beneficiaries of the Will are missing
- disputes about how the Will is being administered
- estate administration disputes
- clarifying the meaning
- a delay in proving the Will.
Who may see a Will
After probate the Will becomes a public document so anyone can see it by searching the Supreme Court probate . Before this happens, the person who has the Will must show it to any of the following people who ask to see it:
- anyone who is named in the Will
- anyone named in an earlier Will
- a spouse or domestic partner of the Will-maker when they died
- a parent, guardian or child of the Will-maker
- anyone who would have been entitled to benefit if the person had left no Will
- a parent or guardian of a person under 18 who was mentioned in the Will, or who would have been entitled to benefit
- a creditor.
Testator’s family maintenance
Any person who can show that the person who made the Will had a ‘moral duty’ to provide for them can challenge a Will by starting a Supreme Court process called ‘testator’s family maintenance’.
Generally the person who wants to make a claim has to be closely related to the person who died. Examples of this are:
- a spouse or domestic partner (or former partner eligible to apply to court for a property settlement)
- a parent, child or stepchild, or someone treated as a child by the Will-maker.
A registered carer, member of the household or grandchildren may also be eligible if they can show that they were dependent or partly dependent on the Will-maker.
The court will look at all of the facts, including:
- the Will and evidence about why the Will-maker made the Will as they did
- whether the person who died had a 'moral duty' to provide for the applicant
- whether the Will-maker left enough for the applicant, and if not, what amount should be chosen
- the physical, mental or intellectual disability of the applicant and any other beneficiary
- whether the person was fully or partly dependent of the person who died
- the nature of the relationship between the applicant and the deceased
- how the other people named in the Will may be affected by a change.
You must apply for a testator's family maintenance claim within six months of the grant of probate or letters of administration being made.
Your local community legal can give you information and advice about challenging a Will.
Get legal advice because if your claim is not successful you may have to pay court costs.
Find out how you can get other support for Wills, estates and powers of attorney.
Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.
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Reviewed 10 April 2022