In general, there are two circumstances in which the will of a deceased person can be challenged.
- The first situation is that where there is a problem with the validity of the will. A will can be challenged because the will maker lacked the requisite mental capacity to make the will or the will does not reflect the will maker’s true intention;
- The second situation is one where the will is valid but is challenged under legislation known as the Family Provisions Act.
In the first type of will challenge, the claimant often argues that the will maker lacked the legal understanding to make the will, as they were suffering from dementia, for example. This type of challenge can also include a circumstance when the will maker was unduly influenced by a potential beneficiary who had the will maker prepare a new will to that person’s advantage or the document lacks the technical requirements to be a valid will.
The first type of challenge usually conducted by the person seeking to propound or support the will instituting proceedings in the Supreme Court to prove the will in solemn form. This means proving the will contentiously (i.e. in argument before a Judge). If there is no argument about the validity of a will, it is usually proved (i.e. an application for a grant of probate is made) non-contentiously (i.e. administratively) which is a fast and relatively inexpensive process.
At Granich Partners, we have been involved in will challenge matters since the 1980’s and have a wealth of experience in this area. We appreciate that this type of legal problem often comes at a very difficult time in a person’s life as they are not only facing legal costs and the associated time commitments and angst common to litigation matters, but also a testing time for family relationship in the grief clouded period following the death of a family member.