Frequently asked questions
Who can challenge a will?
You may be able to challenge a will if you have one of the following relationships with the testator:
- married or de facto partner immediately before the testator’s death;
- a former spouse or former de facto partner if you received or were entitled to receive maintenance from the testator;
- a child;
- a grandchild or stepchild (in certain circumstances); and
- a parent, natural or by marriage.
What will the Court consider?
The Court's will first consider whether the testator has made an adequate provision for you in your particular circumstances. The Court will consider:
- your financial position, level of education and age;
- the provision made for you in the will (if any);
- the relationship the testator had with you and the other beneficiaries;
- the value and nature of the estate;
- any contribution you have made to the testator’s assets;
- the needs of other family members; and
- any conduct that you have engaged in that may disentitle you to a share of the estate.
If the Court finds that an adequate provision has not been made for you, it will effectively re-write the will so that it reflects what a wise and just testator would have done.
What if I am a beneficiary of a will that is being challenged?
A beneficiary of a challenged will does not need to actively participate in the proceedings. However, if the Court upholds the challenge, the amount you will receive under the will may be reduced. For this reason, you may want to present your financial and personal circumstances to the Court to persuade it not to reduce your entitlement.
What if I am an executor of an estate that is being challenged?
As an executor, you will need to be actively involved in the court proceedings. Your role is two-fold: to provide information regarding the value and nature of the estate and to defend the existing will. In most cases, an executor will be entitled to have their legal costs paid from the estate, irrespective of the outcome of the proceedings.
When should I apply?
If you intend to challenge a will, time is of the essence. You must apply within 6 months from the date of any grant of Probate or Letters of Administration (although the Court has a discretion to extend the deadline).