A Will leaves a lasting impression on a deceased's family members. It represents the final words of their departed loved one. Like a message from beyond the grave, the bequests will be carefully scrutinised, revealing the Will-maker's beliefs about their most important relationships.

Concerns can arise about the Will itself or the circumstances surrounding the preparation of the Will.

You may believe that the will-maker did not have legal capacity when making the Will or that the Will was the product of undue influence by another person.

What should you do when you believe something is wrong with the Will left behind by a deceased loved one? Who can address your concerns and answer your questions?

CLO Lawyers Toowoomba help people like you to confront and manage challenging situations relating to Wills and Estates.
We understand that challenging a Will is highly demanding emotionally.
And we appreciate that a Will dispute has the potential to ignite conflict between family members still coping with the grief of losing a mutual loved one.

On what basis can the validity of a will be challenged?

The main reasons for challenging the validity of a Will include:

  • The Will does not comply with the formal requirements of a valid Will;
  • The will-maker did not have the mental capacity to make a will at the time that it was made;
  • The Will is the product of undue influence exerted by another person;
  • There was fraud;
  • The Will-maker may not have known about and approved the contents of their Will; or
  • Suspicious circumstances surround the preparation of the Will.

Who can challenge the validity of a will in Queensland?

You must have an interest in the deceased person’s estate to challenge a Will in Queensland.

Persons who have an interest in the estate of the deceased person include:

  • A beneficiary or executor under the last Will; or
  • A beneficiary or executor under an earlier Will;

Grounds for challenging the validity of a will

1. The Will does not comply with the legislative requirements.

Do you have concerns about whether a Will was correctly signed or witnessed? If so, the issue will need to be determined on the evidence available, so you should immediately seek legal advice.

A Will must be written in visible form, either typed or handwritten. In addition, it must be signed by the Will-maker or by another person in the Will-maker’s presence and at their direction.

The formal requirements for a valid Will include the following:

  • The Will-maker must sign with the intention of executing the Will;
  • The Will must be signed or acknowledged by the Will-maker in the presence of at least two adult witnesses, who are present at the same time; and
  • The Will must be signed by at least two witnesses.

Witnesses must be at least 18 years old. They cannot be beneficiaries under the Will or spouses of beneficiaries.

There will be a presumption that a Will has been validly executed unless there is evidence to the contrary.

2. Incapacity of the Will-maker

Do you have reason to believe that the deceased person did not have full mental capacity when their Will was made (called “testamentary capacity”)? This may be because the Will-maker signed their Will when suffering diminished mental awareness due to Alzheimer’s disease, dementia, an acute mental disorder, the effects of significant substance abuse, or other condition.

A Will-maker must be of “sound mind” to make a valid will. This means they must:

  • Understand that they are making a Will;
  • Understand the effect of that Will;
  • Know the extent, nature, and value of their estate assets;
  • Understand the consequences of including and excluding certain people in their Will; and
  • Not suffer from any “disorder of mind” that may influence their view.

If the Will-maker fails any of the above tests, they may lack the testamentary capacity to make a valid Will.

The executor of a contested Will based on a lack of testamentary capacity must prove that the Will-maker was of sound mind when the Will was made. A detailed Solicitor’s assessment of the factors necessary to establish the mental competence to make a Will, supported by a medical certificate, will be required. These might be supported by evidence such as:

  • Statements of the witnesses to the execution of the Will; or
  • Anecdotal evidence of those who observed the deceased person’s conduct and state of health around the time the Will was made.
3. Undue Influence

Undue influence is where pressure or coercion is applied to a Will-maker, resulting in a Will that does not reflect the deceased person’s wishes.

Are you concerned a Will-maker was subjected to undue influence in the form of threats, physical violence, confinement, or deception? It is possible to challenge a will if it is made under the influence of an overbearing relative, friend, or advisor. This usually occurs when there is an imbalance of power in the relationship. Due to coercion, the weaker party may agree to the demands of the more dominant party and make provisions in their Will contrary to their wishes.

Common examples of undue influence being exerted are:

  • The Will maker’s current partner/spouse applies pressure to leave the estate to them, excluding, for example, children from a prior relationship of the Will-maker;
  • A parent is persuaded to leave a more significant portion of the estate to one sibling to the detriment of other siblings; and
  • A parent persuades their adult child to exclude (or make an inadequate) provision for their partner in their Will.

A Will can be set aside if you can demonstrate that a Will maker was subjected to undue influence when they made their Will.

Undue influence can invalidate all or part of a Will depending on the circumstances. Only the problematic portions may be invalidated, where a part of the Will was procured by undue influence (for example, a specific gift of a cash sum to a person).

Challenging a Will FAQ: Frequently Asked Questions

The main reasons for challenging the validity of a Will include:

  • The Will does not comply with the formal requirements of a valid Will;
  • The will-maker did not have the mental capacity to make a will at the time that it was made;
  • The Will is the product of undue influence exerted by another person;
  • There was fraud;
  • The Will-maker may not have known about and approved the contents of their Will; or
  • Suspicious circumstances surround the preparation of the Will.

You must have an interest in the deceased person’s estate to challenge a Will in Queensland.

Persons who have an interest in the estate of the deceased person include:

  • A beneficiary or executor under the last Will; or
  • A beneficiary or executor under an earlier Will;

If a Will is successfully challenged, it can be set aside, and an earlier Will reinstated. If there is no valid Will, the deceased will be deemed to have died intestate and the estate distributed under the statutory intestacy rules.

If you wish to challenge the validity of a Will, you should seek legal advice at the earliest opportunity.

In the ordinary course, as soon as possible following the deceased’s death, the executor will obtain a grant of probate. Probate refers to the proof or validation of a Will issued by a Court registry. A grant of probate provides authority for the executor to deal with and distribute the estate’s assets. Once an estate has been distributed, the opportunity to challenge the validity of the Will is limited.

Are you considering challenging the validity of a will? In that case, it is recommended that you immediately take steps to prevent the executor from obtaining a grant of probate of the Will. You will be advised to file a probate caveat in the court registry. A probate caveat will prevent a grant of probate from being issued.

The process of challenging the validity of a Will can be complex and confusing. The team at CLO Lawyers are highly skilled and experienced Will and Estate dispute Lawyers. They will treat you with care and sensitivity and achieve the best possible outcome. Contact us without delay for a confidential conversation about contesting a Will or defending a challenge to the validity of a Will.