Not all solicitors have the experience necessary nor the detailed knowledge to advise you on how to contest a will. Within the legal profession, there is a tendency for solicitors to take one of two paths. Either they do court room work or they don’t. It can be difficult to find a non-contentious wills and probate solicitor, who is also capable of dealing with litigation in a court of law to advise you on how to contest a will. Our lawyers are specialists who are qualified to handle these matters including contests, disputes and questions over the validity of a will. There are a number of reasons for disputing a will and the law can be very complicated in certain areas. For instance, someone who was not included in the will might bring a legal action because they believe they are entitled to some of the deceased’s assets. Should you find yourself on the cusp of legal action, you’re well advised to contact a solicitor immediately. You can contact one of our lawyers by filling out the form on this website or by calling us on our no cost helpline or by emailing our offices. When considering taking any legal action it's important that you seek qualified legal advice before making any decisions about your situation. With the right legal advice you can ensure that you are making a properly informed decision.

Valid Will Requirements

When considering how to contest a will an aggrieved third party will first consider whether or not the requirements for execution of the will have been complied with in full. There are no half measures here and the will is either legally executed and is valid or it's imperfect and thereby invalid. If that is the case then an earlier will may take precedence or if there is no earlier will or no earlier valid will then the intestacy rules take precedence and in that case if there are no surviving relatives that comply with the statutory requirements then the state can step in and claim the entire estate.

The all important question is whether the will is valid. So many mistakes can be made in executing a will which can invalidate the entire document. It’s an area rife with pitfalls for the inexperienced or DIY pack purchaser. The law sets forth strict criteria for a valid will. The testator must be over the age of 18 years, of sound mind and free from any undue influence. The undue influence issue commonly arises when a beneficiary is seen as having had too much involvement in making the will. There are also specific witnessing requirements. Two individuals must witness you signing the document and then sign the document themselves as well. Neither of the witnesses should be a beneficiary of the will or else they forfeit their inheritance.

DIY Will

In the case of a DIY will the question of validity can often be answered by simply considering the execution of the document. The first place that a lawyer looks on behalf of a client is at the actual signing and witnessing of the will. In order to be a valid will the following conditions must be fulfilled :-

  • the document must have been made by or for an adult which for the sake of the law means a person over the age of 18 years
  • the contents must have been dictated by the testator of their own free choice and there must have been no undue influence which includes any form of threat or coercion from any other person
  • the person giving instructions or compiling the document must not be mentally incapacitated to the extent that they were not fully aware of the meaning of the document
  • The document must be signed by the testator in the presence of two witnesses who must also sign. Alternatively the testator, who may have previously signed the document, must acknowledge his signature in the presence of two witnesses who must then sign the document in the presence of all three.
  • A beneficiary should not witness the document or they will lose their bequest but the remainder of the document will be valid and enforceable.

Lost or Destroyed Wills

In the case of a lost or accidentally destroyed will the assumption without proof to the contrary is that the deceased testator deliberately destroyed the will prior to death with the intention of positively revoking the document. This assumption can be challenged in the high court by potential beneficiaries who may be in possession of a copy and may be able to prove actual loss or accidental damage.

Sometimes the original will is lost. In those cases, the person appointed as executor can go before the court and attempt to prove that a copy of the will is valid in order to obtain a Grant of Probate. Should it happen that a beneficiary of an earlier will is not listed in the copy being brought before the court, that beneficiary may want to contest the validity of the copy. In disputing a will a beneficiary could argue that the original will was not lost, but was rather destroyed as a means of revocation by the testator. If the lost will was actually destroyed by the testator then an earlier will may be valid. Litigating this type of contest requires extensive evidence and documentation. You need the advice and assistance of an experienced solicitor to be successful in litigation over a lost will.

Dependant’s Right to Support

It does sometimes happen that a testator does not make any provision for a dependant and in this case a dependant would be perfectly entitled to consider disputing a will to make personal provision for their needs in the same way that the testator provided prior to death. Beneficiaries who object to provision for a valid dependent would do well to take detailed legal advice as claims for beneficiaries are often successful.

During the deceased’s lifetime, certain people may have been dependent on the deceased for financial support, such as a spouse, minor or disabled person. Dependants have a legal right to continued support. If the deceased failed to make suitable provisions for a dependant in their will, the dependant can bring a legal action on the basis of a prior claim to the estate.

When considering taking any legal action it's important that you seek qualified legal advice before making any decisions about your situation. With the right legal advice you can ensure that you are making a properly informed decision. We offer a legal advice helpline at no cost.