Is It Possible to Challenge A Deceased Estate?

Law Blog

The loss of a loved one can be a difficult time for many families. However, complications can arise when it comes to dividing the deceased estate. There are instances where family members may want to challenge the will, either due to feeling unfairly treated or due to valid concerns about the validity of the will. So, if you'd like to look at this option, what are some of the circumstances under which you can challenge a deceased estate?

Lack of Testamentary Capacity

One of the main factors that can lead to a deceased estate being challenged is if the deceased did not have testamentary capacity when the will was created. Testamentary capacity means the person drafting the will had the mental capacity to understand the consequences and effects of the document they were creating at the time. This can be particularly relevant if the deceased was suffering from a mental illness or was subjected to undue influence or coercion from someone at the time of drafting the will.

Invalid Will

If a will is found to be invalid, it may be challenged. Some of the reasons could relate to issues with the signature, forgery, or a lack of understanding on the part of the testator. When a will is declared invalid, it may not be distributed according to the wishes mentioned in the will and instead will be distributed according to the intestacy rules.

Family Provision Claims

In Australia, the law allows some family members and dependents to contest the deceased's estate for not receiving fair or reasonable provisions out of the estate. Family provision claims are significant when the deceased didn't provide adequate financial support for their spouse, child, or even grandchildren, where other beneficiaries receive a higher sum than the family members who are eligible for such claims.

Undue Influence or Fraud

If a family member can prove that there was undue influence or even fraudulent behaviour at play when the will was created, they can challenge the will's validity. Undue influence can be difficult to prove but occurs when a person applies pressure to the deceased person, so they do something against their wishes.

The Will Doesn't Comply With the Law

A will must comply with certain legal requirements to be valid. If it is not created to legal standards, it can be challenged. For example, a will must be signed and witnessed by at least two people, and importantly, the person creating the will must be sound of mind and understand exactly what they are doing.

How Should You Proceed?

Taking on a deceased estate challenge is complex and comes with significant implications. If you think you have a valid reason to challenge a deceased estate, it's advisable to consult and hire a professional estate solicitor. They can provide guidance on appropriate actions to take, including any available legal options, and help with the entire estate dispute process. 

For more information about deceased estates, contact a local professional. 


21 April 2023

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