Challenging a Will

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Challenging a Will

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
  • 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
  • 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. 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 adequate provision was made for the applicant, if not, what provision should be made
  • 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 centre 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.

Get help

Find out how you can get help with Wills and estates.

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