Broadly speaking, a will can be challenged in 4 distinct ways:
1. Lack of testamentary capacity:
This means that the testator (the will maker) was not mentally sound or competent at the time of signing the will, due to factors such as dementia, Alzheimer’s disease, or some other mental impairment. To put it another way, the testator was incapable of forming a judgment about how to divide their estate, and amongst whom.
2. Unlawful pressure / manipulation / undue influence:
This occurs when the testator was pressured, manipulated or coerced into making decisions against their wishes. This could involve manipulation, threats, or even physical abuse by which the testator’s will is overcome and supplanted with the will of the person applying the pressure.
3. Failure to follow legal formalities:
The will must be drafted and executed in accordance with the specific legal formalities. Failure to comply with these requirements, such as proper witnessing, signing the will in the correct location, improper attestation clauses, could invalidate the will. Also grouped together under this category are cases of fraud or forgery. This involves the intentional alteration or misrepresentation of the contents of the will. This could include a third party being added or removed as a beneficiary or changing the distribution of assets or even forging the testator’s signature.
4. Failure to provide adequate provision (Family Provision Claim):
In some jurisdictions, such as Queensland, a spouse or child or a dependant has the right to expect to receive maintenance by way of financial support from the deceased. If they are not explicitly provided for, or adequately provided for, in the will then they have the right to make a claim. These are known as family provision claims. Essentially what the claim is about is that adequate provision for the proper maintenance and support of the spouse, child or dependant was not made and the Court is asked to interfere and exercise its own judgment as to the amount that is reasonable in all the circumstances.
Challenging the will is a complex legal process that does require the assistance from an experienced estate lawyer.
It is important to remember that each case is unique and depends on the specific circumstances. The experienced Madsen Law team can provide you with the guidance and support you need to navigate this process and achieve a favourable outcome. Contact us today for an initial consultation to discuss your case and how we can help you.
