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Challenging a will

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In certain circumstances the validity of a Will can be challenged.  Where a Will is successfully challenged it will be set aside and will not have force.

In determining whether a to set aside a Will, a Court will consider the following questions:

  1. Is the Will the last Will made by the deceased;
  2. Was it executed in accordance with requirements of the Succession Act;
  3. Was the Will altered after it was written;
  4. Did the Will maker have the testamentary capacity to make the Will; and
  5. Was there any undue influence involved when the will was drawn up.

Segelov Taylor Lawyers are able to provide advice and representation in respects of challenges on Wills.

What is testamentary capacity?

A person making a will must have testamentary capacity. This means they must be of sound mind, memory and have understanding at the time of making the will. A person is regarded as having the required capacity if they:

  • Know what a will is;
  • Realise in general terms the amount and type of property they are disposing of;
  • Can weigh the “moral claims” that they should be considering when deciding who to leave property to; and
  • Know and approve of the contents of the Will.

Who can challenge a will?

Any person who has interest in the will (or a previous will) of the deceased may challenge a will.  This is a far broader test than for contesting a will.

What is undue influence?

A will can also be challenged if the will maker was subjected to undue influence or duress in the making of the will.  A court will however only overturn a will on the grounds of undue influence where it is satisfied the will maker’s mind was coerced to such an extent that the resulting will was contrary to the will maker’s real intentions. This can be extremely difficult to prove.

Are there time limits?

There are not strict time limits, although proceedings should be commenced as soon as practicable.

Are there other options?

An alternative to challenging a will is to contest a will.

The difference between challenging a will and contesting a will is that a challenge to a will alleges that the will is not valid, while a contest to a will alleges that the will improperly excludes (in whole or part) a person who should have been provided for.

Segelov Taylor are able to assist in contesting and challenging wills.

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