Can a will be challenged?
A will can be challenged or contested if there are doubts around the validity of the will.
Other reasons a will may be challenged include:
- A person you had a responsibility to provide for believes you haven't left them a fair share or haven’t made adequate provision for them. This could be a close relative such as a spouse, child or stepchild, grandchild or parent. In this case the relative would have the right to apply to the Court under the Family Protection Act
- A person has been promised a reward in the will for their services and that promise is not kept, it could be challenged under the Testamentary Promises Act
- A spouse or partner isn’t satisfied with what they have been left and wishes to challenge the will under the Property Relationship Act.
Why could a will be deemed invalid?
To be considered valid, a will must be written by someone of sound mind who is not being coerced or unduly influenced.
It needs to be signed by the person making the will and dated and witnessed by at least two people who are not beneficiaries of the will.
Your will may not be valid:
- If you have married since the will was made
- If it is not signed and witnessed properly
- If there was some undue pressure or influence when making your will
- If you were not of sound mind
- If you were under 18 when you made the will (and the will was made without the court's consent)
When can a will be challenged?
As well as the points listed above, a will may be challenged if...
- a person you had a 'responsibility' to provide for, believes you haven't left them a fair share of your assets / have not made adequate provision for them. This would normally be a close relative such as a spouse, child, grandchild or parent. In this case the relative would have the right to apply to the Court under the Family Protection Act
- step children may also challenge a will if they were being wholly or partially maintained by you at the time of death
- a person has been promised a reward in the will for their services and that promise is not kept, the will can be challenged under the Law Reform (Testamentary Promises Act)
- if a spouse or partner wishes to challenge the will under the Property (Relationships) Act if they are not satisfied with what they have been left under the will.
How to contest a will
As soon as a person decides to challenge a will they should file a caveat (warning) with the High Court. A 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. The person making the challenge is then a respondent to the application, and can file documents with the court to make their case.
How long do you have to contest a will?
A claim must usually be filed in the court within 12 months of the grant of probate (or date of death if no probate). The court can extend this timeframe but not if the estate has already been distributed.
An executor may distribute the estate after 6 months if they have not received notice of any claim. If a claim is notified to the executor after this time, the executor is protected (for having made that distribution) and the claimant would need to apply to the court to follow the assets distributed.