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How To Challenge A Will?

Law & Administration

What you can do to challenge a will in the wake of probate in Australia is contingent on several aspects, including the territory or state and the timing.

If someone dies, the executor of their Will has to go through the steps to begin executing the terms of their Will. Sometimes, however, the Will could be in error and may not include a person who would be a beneficiary of the estate of the deceased.

If this happens, the Executor has the right to challenge the will. In this article, we’ll look at the process of contesting the validity of a Will following probate and the things to think about when you’re going through the procedure.

What Is A Grant Of Probate?

The courts grant a Probate to recognise legally that an executor is a person named in the Will, as well as the authority that they have to manage the estate of a person who has died. 

Probate is required before the Executor is able to take over control of the deceased’s estate. And it is granted when probate is a validation of the Will in the Supreme Court.


Can You Contest The Validity Of A Will After Probate In Australia?

In Australia, it is possible to contest the validity of a Will following the time that the Probate grant granted. But, the Executor needs to act quickly when contesting, as it’s nearly impossible after the assets have been taken.

There are different requirements to contest the validity of a Will according to the territory or state. In order to be able to successfully challenge a Will following probate, you’ll need legal counsel on the best approach to your specific situation. You should follow it with care.


What Are The Motives To Contest The Validity Of A Will Following Probate?

There are many reasons an individual might want to contest an existing Will following probate. Alongside family provision claims, if you have the ability to prove a valid relationship with the Will creator, There are several other aspects that the court may examine when evaluating your claim:

  • How well you are connected to your Will maker.
  • What are your financial needs? How do they compare to those of other beneficiaries?
  • The amount that the land is.
  • If you made a contribution to the Will creator’s estate, finances, or property during their lifetime.
  • If you need help because of an impairment in your mental or physical health.

In the event of a dispute, You can challenge the validity of a Will when you could reasonably be able to gain in the Will maker’s estate but were not included or treated in a way that is unjust.


What Is The Best Time To Contest A Will Following Probate?

If you’re legally qualified and have proven grounds to make claims, states and territories offer distinct timeframes for filing the claim. For instance, some states and territories calculate it as if you died or when the Executor is granted the Probate grant.

It’s important to know the deadline for contesting an appeal to a Will after probate. Also, get guidance on the limitations that apply in your region or state. It may be difficult to challenge the validity of a Will once the deadline has passed. 

If the claim is made past the deadline, the court can only take into consideration the claim in exceptional situations.


Who Is Able To Challenge The Validity Of A Will?

Anyone who is able to contest the validity of a Will has to meet the criteria of being “eligible”. For you to qualify, you must be in a close relationship with the person who made the Will. Typically, you must be at least one of these:


  • Spouse
  • Child or dependent
  • Grandchild
  • Parent
  • De Facto partner


It’s possible to be someone who believes they have a legitimate claim due to the assistance or companionship you offered to the Will-maker throughout their lifetime. Certain relationships may have an upper priority over others when contesting the validity of a Will.

For instance, the spouse has precedence over children, and children born to a Will maker might be favoured over step-children or adult children. 

While these will cover the most commonly-used relationships, however, each state or territory is different in the definition of who can contest the validity of a Will.


Final Thoughts

If you decide to challenge the validity of a Will after Probate has to be handled quickly and effectively in order to ensure no harm is caused to family members, friends, and those who will benefit from the inheritance.

Contesting a Will is different across Australia, and therefore it’s better to be aware of the rules that are applicable to the state or territory you reside in. 

If you’re not sure if you’re legally allowed to contest a Will, you should seek legal advice immediately.

Central coast lawyers are amongst the best when it comes to hire lawyers in Australia for property dispute cases.


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