Disputing Wills

By Heckenberg Lawyers

Introduction

There are three main avenues to challenge or dispute a will. But first you need some basic points about wills.

Usually, the executor named in the will (ie the person who carries out the instructions in the will) must obtain a grant of probate from the Supreme Court which gives legal authority to deal with the deceased's property. In order to obtain a grant, the executor must lodge the will and certain other documents with the Court. Once the Court Registrar is satisfied that the documents are in order and that the will is formally valid, a grant of probate "in common form" is issued. (Alternatively, if there are contentious issues surrounding the will, a grant of probate "in solemn form" will be issued. Contentious issues often arise where parties seek to challenge the will using the methods outlined below. The focus here is challenging wills that receive grants in common form.)

Of the three avenues for challenging a will, one is available before the grant of probate, and two are available after.

Challenging a Will Before a Grant

Caveats


If a grant in common form has not yet been made, a caveat (which is a warning entered in the books of the Court Registry) can be lodged with the court. This prevents the Court from issuing a grant of probate without first notifying the person who lodged the caveat. Each type of caveat is appropriate to different circumstances.

(1) Caveats seeking proof of the will in solemn form
These can only challenge the will on the issue of due execution, no other issue can be raised. They are used where there are concerns about forgery or doubts about whether the will was properly signed and sealed.

(2) General caveats
Used where doubts arise about the testator's capacity to make the will, the identity of the intended beneficiary, the testator's understanding of the content of the will or its effect, whether the deceased acted under duress or undue influence in making the will, or if there are concerns about forgery.

(3) Caveats forbidding grants in respect of informal documents
In some circumstances, the Court has the power to treat informal documents as wills even though they may not have been properly signed or witnessed. This type of caveat prevents a court from making such a grant without first hearing from the caveator regarding whether the informal documents should be granted validity.

Challenging a Will After a Grant

Application to the Equity Division of the Supreme Court under the Family Provision Act 1982

The Family Provision Act 1982 specifically applies to people who have not been provided for in the relevant will. If the Court is satisfied that the person applying is an "eligible person", it may order that provision out of the estate be made for that person's maintenance, education or advancement in life.

An "eligible person" is defined in the Act as:

  • wife, husband or child of the child of the deceased, or former wife or husband;

  • grandchild who was wholly or partly dependent on the deceased, or who was a member of a household of which the deceased was a member;

  • person living in a domestic relationship with the deceased when they died.

    The most recent amendment to these categories was the inclusion of the "person living in a domestic relationship" as an eligible person. This covers partners who do not fit within the formal definition of de facto couple to apply for provision under their partner's will. However, not all partners can claim. For example, a girlfriend who lived separately from the deceased will not be able to claim, whereas a partner in a same-sex relationship who was living with the deceased (thus fulfilling the statutory definition of "domestic relationship" in the Property (Relationships) Act 1984) will be able to claim.

    Despite this broadening, there are a number of requirements to be fulfilled in order to successfully challenge a will. The Family Provision Act 1982, the Property (Relationships) Act 1984, the Wills, Probate and Administration Act 1898 and the Supreme Court Rules 1970 all contain different parts of the legal jigsaw. The Court's discretion to grant an application in these circumstances is not unrestricted. Therefore, care should be taken with these matters, and anyone considering making such an application should seek expert legal advice.

    Application to the Probate Division of the Supreme Court for Revocation

    Where a grant of probate in common form has been made, an application can be lodged with the Court to revoke that grant. The grounds for revocation are very limited, but include where the grant:

  • has been made to the wrong person (eg if a later will is discovered);

  • is irregular (eg one made despite a caveat being in force);

  • has become ineffective (eg where the executor has become mentally ill).

    Any interested person can apply for a grant to be revoked, including anyone entitled to the estate if there was no will, any beneficiaries named in either the current or a previous will, and any executor named in the will. Revocation is not lightly granted and any person considering such a step should seek expert legal advice.


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