Challenging a Will

So you think that you can do what you like with your property when you pass on? Think again.

A challenge to your Will can result in the Court changing the provisions in your Will, substituting provisions from your previous Will, or your entire Will being voided.  

The effect of a challenge to a Will on family relationships can be devastating and significant.  When your Will is drafted, it is crucial that consideration is given to any potential challenges that may be made to your Will after your death.  

The most common challenges to Wills are made by:

Spouses/Partners under the Property (Relationships) Act 1976

Your surviving spouse or partner can choose to either make a claim for their share of the relationship property or accept the terms of your Will.  The claim for a share of relationship property must be made within six (6) months.  Relationship property claims are always considered first and take priority over claims made under the other Acts.  

Immediate Family under the Family Protection Act 1955

Your immediate family (children, wife/husband/de-facto partner, grandchild, step-child), can challenge your Will if they feel you made inadequate provision for their proper support and maintenance.  The Courts have ruled that parents have a moral obligation to make some provision for their children, even adult children who are not in financial need.  These claims must be made within twelve (12) months.  

Others under the Law Reform (Testamentary Promises Act) 1949

A claim may also be made if you fail to provide for someone in your Will as promised, in return for services/work carried out for you. The claimant will need to be able to prove that you made the promise to them and that the promise was a reward for past or future services.  These claims must be made within twelve (12) months.

Others as to the validity of your Will

A claim can be made against the validity of your Will if there are concerns about whether it was properly witnessed, you lacked mental capacity to make a valid Will, or there was duress or undue influence on you when making the Will.


If you are concerned about the provisions you have made in your existing Will or would like a new Will drafted, feel free to contact us at Gallie Miles to discuss your situation.  

By
Kerry Bowler
Law Clerk

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