Challenges to your will after you die
Challenges to the legal validity of a will
On what grounds might the validity of my will be challenged?
The legal validity of your will might be challenged on the ground that, for example:
- the will was not properly signed and witnessed (see “What requirements must I meet for my will to be valid?” in this chapter)
- you did not have full mental capacity (were not of sound mind) when you signed the will
- you did not in fact know what was in the will when you signed it
- the terms of the will have been affected by some other person’s fraud or undue influence on you.
How does someone challenge the legal validity of a will?
The legal validity of a will must be challenged in the High Court. This is a complex process and will require the help of a lawyer.
As soon as someone decides to challenge a will, they should file a caveat (warning) with the High Court. The caveat must be lodged prior to the granting of probate. This means that when the executor applies to the High Court for probate of the will, they are required to notify that person and serve copies of the documents on them (see the chapter “A death in the family”, under “Dealing with the deceased’s property”). The person making the challenge is then a respondent to the application and can file documents with the court to make their case that the will is legally invalid.
However, the court can declare a will invalid even after the granting of probate.
Note: Even if a will doesn’t meet all the formal requirements for a valid will (for example, to have two witnesses), the High Court has a broad power to approve the will so long as the judge is satisfied it expresses the will-maker’s intentions.
What happens if the court declares that my will is invalid?
If the High Court decides that your will is invalid, it means:
- any earlier will of yours is reinstated, or
- if there is no earlier will, your property will be dealt with under the laws of intestacy (see the chapter “A death in the family”, under “Dealing with the deceased’s property: Wills, “intestacy”, and small estates”).