January 2015 | Jonathan Harris

On your death, a family member has questioned the validity of your Will. This means that they are asking the Court not to grant Probate of your Will.

Who can challenge my Will?

Spouses, former spouses, de facto partners, children, a step child that was dependent on you, grandchildren who are partly or wholly dependent on you, members of your household who were dependent on you and people in a close relationship who lived with you can challenge your Will.

On what basis can someone challenge my Will?

The following provides examples of circumstances that may allow a person to challenge your Will:

  1. Undue Influence;
  2. Fraud;
  3. Forgery; and
  4. An allegation that you lacked mental capacity when you made your Will.

What happens if my Will is successfully challenged?

If it is successfully proven that your Will was not validly made then the Court will set aside the challenged Will. It will be treated as though it never existed. Your estate will then be distributed in accordance with your next previous Will. If you don’t have a prior Will, your estate will be distributed according to the “intestacy laws”.

What steps does Harris Freidman take to help me ensure that my Will is not challenged?

To minimise the risks of having your Will challenged we will:

  1. meet with you alone and in person to get instructions on preparing your Will to ensure that there is no undue influence;
  2. if you are elderly we often engage a geriatrician to meet with you and prepare a report at the time you sign your Will about your mental capacity; and
  3. attend and witness the signing of your Will. This will minimise the risk of a claim that your Will was forged.

Written by Jonathan Harris
(02) 9231 2466

If you require further information or advice please contact Jonathan Harris or Steven Nemes on (02) 9231 2466 or email jharris@hflawyers.com.au or snemes@hflawyers.com.au

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