|The contents of this page is general information only and should not be considered to be legal advice. It does not take into account the many variations in the laws between the various Australian States. You should obtain your own legal advice applicable to your own personal situation.|
Unfortunately, administering an Estate is not always a straightforward process.
Although the deceased is commonly called a “testator”, in this section of the site we call that person a ‘Will–maker’, for simplicity.
The validity of the Will may be doubted or disputes may arise between beneficiaries. Executors are usually diligent and meticulous when performing their duties, but some may be uncooperative or dishonest in administering the Estate.
This guide aims to assist those with questions regarding challenging the validity of a Will and how to deal with troublesome executors. This is a guide only and you should contact CWPL for information about your individual circumstances.
For information on applying for probate, click here.
Can you object to the person appointed as executor under a Will?
A testator is entitled to appoint whoever they wish to act as the executor and trustee of their Estate. Usually, the testator will appoint the same person to be both the executor and trustee; typically a family member, close friend or solicitor.
There is not much that can be done to stop an executor from undertaking their appointed role in accordance with the Will and applying for Probate. An executor usually cannot be compelled to renounce their position as executor.
An executor’s appointment may be revoked in some situations. For example, a Will is revoked in its entirety by marriage unless it is proved that the testator signed the Will in contemplation of the marriage and intended that it remain valid after that event.
Divorce, however, will not invalidate the entire Will but only any references to the testator’s former spouse. The law treats the former spouse as if he/she had predeceased the testator at the time that they were legally divorced. This means that the former spouse will not be permitted to act as executor even if the testator did not change his/her Will after the divorce. In this situation, the second appointed executor in the Will, if there is one, or the next of kin will be entitled to apply for probate.
Challenging a Will: can the validity of a Will be challenged?
Yes. In order for a Will to be valid, it must comply with certain legal requirements. These requirements will vary from State to State.
If the validity of a Will is challenged in any way, the executor’s application for Probate will be withheld until the dispute is resolved, usually by a court. A Will can be disputed in a variety of ways which are discussed below.
A Will must be in writing and the testator must be aged over 18. The testator must sign, or ‘execute’, the Will to show that he/she intended to give effect to it. This must be done in the presence of two (2) or more witnesses who are present at the same time and who must also sign the Will.
There are strict rules about who can be a witness and how changes to a Will can be made. Any changes made to the Will after it has been executed could be seen as tampering with the Will.
The validity of a Will may also be challenged for other reasons.
A skilled lawyer is able to provide advice as to whether a Will complies with the requirements of the law and assist you with an application to the courts if the Will is invalid. .
If a Will is found to be invalid, then the Estate will not be divided in accordance with its terms. If a valid earlier Will exists, then the Estate will be divided in accordance with that Will
If there is no earlier Will, then the testator will be considered to have died without a Will or to have died ‘intestate’. There are strict rules which state who of the deceased’s relatives are to receive a share of the Estate in the event of an intestacy. These rules also state who of the deceased’s next of kin is eligible to obtain Letters of Administration. This person is called the ‘Administrator’ and has the same duties and powers as an executor.
The testator’s wishes will of course not be complied wish if his / her Will is considered by a court to be invalid. It is strongly recommended that you receive advice from a solicitor about preparing a Will, or have a solicitor prepare a Will for you.
What if I think that the Will is a fake or the testator’s signature was forged?
A fake Will or one where the testator’s signature has been forged will obviously fail to meet the legal requirements of a Will. .
Forgery is a criminal offence and criminal charges may be brought against the forger if their identity is known. A court can make a finding that a Will has been forged without identifying the forger.
What if I think that the deceased was not of sound mind at the time of making the will?
A testator must be of sound mind, or have had “capacity” at the time of executing their Will.
To have “capacity” means that the testator understands at the time of giving instructions to their solicitor and/or upon execution of their Will, the nature of what they are doing, the content of the Will and the effect of executing it. The testator should also know and understand what assets are being disposed of in the Will and his/her moral obligations to certain people such as his/her spouse and children.
If the testator was suffering from some disorder of the mind at the relevant time, such as Alzheimer’s or dementia, then the testator may be considered to have lacked capacity and then invalidate the Will. Medical evidence will need to be produced in this situation.
The Will can be challenged if there is some doubt as to the testator’s capacity. Evidence must be provided to the court to show what the testator’s state of mind was at the relevant time. This evidence will usually be given by:
- the witnesses to the signing of the Will,
- any witnesses at the time the testator provided instructions for the Will,
- the solicitor who drafted the Will; and
- medical practitioners, specialists and carers.
It is not an indication of incapacity if the testator is motivated by malice in disinheriting their family or cutting a particular family member out of his/her Will altogether.
What if I suspect that the deceased was pressured by someone into changing his/her Will?
If the testator was pressured or intimidated into making or changing his/her Will, then this could make the Will invalid. This pressure is called ‘undue influence’.
There must be independent evidence showing that there was an exercise of an improper influence over the testator which amounted to intimidation or ‘coercion’. Coercion may be physical or mental, and it may be a large or small amount. It will usually not be enough unless the persuasion or pressure resulted in the will and mind of the testator being overborne.
The person exerting their influence on the testator is often someone close to the testator such as a family member or a carer. In order for undue influence to be established, the court has to rule that someone had the power to influence the testator’s decisions in such a way that the deceased was not able to exercise their free will.
Proving undue influence is usually very difficult and will depend on the circumstances of the case. Very few legal cases result in a verdict that there has been undue influence. You should obtain expert legal advice before alleging undue influence.
How is a Will cancelled or ‘revoked’?
A Will can be cancelled or ‘revoked’ in many ways. Whether a Will has been properly revoked may be an issue if, for example, more than one (1) Will has been found.
The testator’s intention to revoke his / her earlier Will is usually stated in the testator’s new Will. This means that a later Will usually overrides an earlier Will.
A Will can also be revoked by marriage, as discussed above, or by destroying it.
To revoke a Will by destroying it, the testator must burn it, tear it up or shred it with the intention that the destruction would revoke the Will. If a testator asks another person to destroy the Will in front of him/her, this may also revoke the Will.
If a Will is destroyed without the testator meaning to revoke the Will, for instance by accident, then a copy or draft version of the Will may be used to obtain probate.
If a Will cannot be found after the death of the testator, it is presumed that he/she destroyed the Will thereby revoking it.
You will probably need legal advice if the will is lost.
What are the costs of a contested probate?
It is usually assumed that the costs to challenge a Will or contest a probate are paid from the Estate and that the person challenging the Will shall not be out of pocket. This is not entirely correct.
Even if you are successful in challenging the Will, you will usually not get back any more than 50% to 60% of your legal fees. This is because the court will usually use a scale of fees to determine how much costs are to be paid that is lower than the rate the solicitor will charge their client
For many claimants this shortfall could be up to $20,000, and the claimant will need to pay it.
A wise claimant might negotiate a No Win No Fee arrangement (or a conditional fee agreement) with his/her solicitor to ensure that the claimant can never be out of pocket on the legal fees payable to his own lawyers.
Find out more about our sponsor’s No Win No Fee agreements.
Whilst there are some situations where the costs to challenge a Will are paid from the estate, this is not always the case.
The general rule is that the successful party will have their legal costs paid for by the unsuccessful party. There are however some exceptions to this rule.
Where a probate claim arose from the negligence of the testator’s solicitors, the costs of those legal proceedings may be recoverable from those solicitors.
In deciding whether to order one party to pay the other’s costs, a court will consider all of the circumstances of the case including the conduct of the parties before and during the legal proceedings, whether the parties tried to avoid legal proceedings by attempting to resolve the dispute and whether it was reasonable for the party who commenced the legal proceedings to do so.
As there is a risk that you may be ordered to pay the costs of the other party, it is strongly recommended that you receive legal advice before deciding to pursue a claim.
If you have any questions on the information contained in this guide, or if you have any questions, please call our lead sponsor CWPL.
What is a NO Win No Fee plan.
This type of plan ensures that you should never have to pay any part of your own solicitor’s legal fees from your own pocket, whether you “win” or “lose”.
Under this type of plan, the client’s solicitor should only charge a fee for their work IF the amount recovered by making the claim exceeds the legal fees, and the legal fees are only charged WHEN the funds are recovered.
Most plans do not cover the out of pocket expenses of the solicitor, such as barristers fees and court fees, and so usually a claimant has to pay these from their own pocket as the matter proceeds, even if they are on a No Win No Fee plan.
A solicitor who offers a conditional fee arrangement is usually entitled to charge an extra fee (an Uplift Fee) that is up to an extra 25% of their normal fee for time.
Hint: find a solicitor whose No Win No Fee plan covers both their time charges and their out of pocket expenses, so that you effectively get 100% finance.
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CWPL’s unique No Win No Fee plan offers you the following special features:
- It covers not only CWPL’s time charges, but also all out of pocket expenses so you should never have to pay anything from our own pocket
- CWPL only charges when the funds are recovered from the claim, so you should never need to make any payments in advance
- CWPL usually charges an Uplift Fee on its Professional Fees of 25%.