Contested wills

Broken egg
Do you wish to contest someone’s estate because you believe that their will was not valid?

What makes a will valid

There are a number of requirements before a will, whether formally prepared (for example, by a lawyer) or informally prepared (for example, by the deceased or a friend of the deceased) can be admitted to Probate, including that:

  • the will was signed on each page in the presence of two witnesses who also sign the will on each page; and
  • the deceased appeared to the witnesses to know and approve the contents of the will.

When wills may be deemed invalid

When some or all of the requirements are absent, a will may not necessarily be admitted to Probate as the last will and testament of the deceased.

Indeed there are many examples where a will, even if it appears to have been formally prepared and executed, may be deemed invalid provided the person making this allegation is able to prove that the document was not intended by the deceased to be their last will and testament.

Examples of contested wills claims

Here are some examples of claims we have dealt with:

  • the deceased lacked the mental (or “testamentary”) capacity to make a will (for example, the deceased had dementia at the time he or she signed the will)
  • the deceased did not understand the will (for example, the deceased did not understand English or was blind or illiterate and was asked to sign it without having full knowledge and approval of its contents)
  • the deceased was subjected to undue influence or duress or coercion by another person to sign the will (for example, the black sheep child who browbeats their elderly and suggestible parent to sign a homemade will which benefits that child and not other of the deceased’s children)
  • the signature on the will has been forged
  • the will was not the last will made by the deceased (that is, there is a later will of the deceased which for some reason has not been admitted to Probate)

What you must do

If you believe that the will of your loved one who has recently passed is not valid for any of the above reasons, or any reason at all, please contact us immediately as time limits apply.

If you are an interested party, for example a close personal relative of the deceased, we will be able to ask the executor for a copy of the will before the will is admitted to Probate.

We can also lodge a Caveat in the Probate Registry to stop the will being admitted to Probate unless and until certain conditions are satisfied.

Once a Caveat is lodged, we can make enquiries on your behalf concerning the circumstances in which the will was prepared and executed.  Court proceedings may follow, or we can settle the matter without resorting to Court proceedings.

If the will is indeed invalid, then an earlier will may be admitted to Probate, or if there is no earlier or later will, the deceased may be deemed to have died intestate.

How we can help

We are specialists in contested wills claims and have acted on both sides of such disputes:

  • on behalf of executors and/or beneficiaries wishing to uphold wills which might appear to be highly informal and suspicious, but are nonetheless provable as the last will and testament of the deceased; and
  • on behalf of affected individuals who believe that a will, though apparently formally prepared, is nonetheless invalid because the deceased, for example, lacked testamentary capacity at the time he or she signed it.

This is a highly technical area of the law and we urge you to seek our advice immediately.

Top

The Di Rosa Lawyers Difference

We are trusted advisers to business and property owners and their families. We can help solve many of your legal problems in the areas of law that matter most to you. We listen to you and are focused on your needs. You will notice the difference as soon as you walk in to our office to meet us or pick up the phone to talk to us for the first time, Learn more about us.

Accreditations