Most people who want to challenge a will are unhappy with what it says. That, on its own, is not a ground. Knowing the difference early saves families a great deal of money.
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A will can be attacked on limited bases. The main ones are that the will-maker lacked the mental capacity to make it, that they were unduly influenced by someone, that the will was not executed with the required formalities, or that it is a forgery.
Being treated unequally is not itself a ground. Adults are generally free to leave their property as they choose, subject to the claims described below.
Undue influence means pressure that overbore the will-maker's own judgment — not persuasion, and not the fact that a beneficiary was close to them. It is a serious allegation and it has to be proved.
Two categories operate independently of the will's terms. A surviving spouse has entitlements including the ability to elect an equalization entitlement under the Family Law Act within six months of death — a short window that is easy to miss while a family is grieving.
Dependants of the deceased may bring a claim for support under the Succession Law Reform Act. That can include a spouse, a child, or others who were being supported.
Both are time-limited. Deadlines are the single most common reason a meritorious estate claim fails.
A great many estate disputes have nothing to do with the will's validity. They are about an estate trustee who will not communicate, will not account, or is perceived to be favouring themselves.
The route there is a passing of accounts, where the trustee's administration is examined by the court. Where a trustee will not act at all, or cannot act with co-trustees, other remedies exist.
These are also the disputes most amenable to being resolved without a trial, which matters because estate litigation is paid for out of the very assets everyone is arguing about.
Unfairness alone is not a ground. The recognised bases are lack of capacity, undue influence, failure of formalities, and forgery.
Pressure that overbore the will-maker's own judgment. Persuasion or closeness to the deceased is not, by itself, undue influence.
Possibly. Dependants may claim support from the estate under the Succession Law Reform Act, independently of what the will says.
Estate claims are time-limited and some windows are short — a surviving spouse's election under the Family Law Act is six months from death. Get advice early.
Beneficiaries are entitled to an accounting. Where it is not provided voluntarily, the accounts can be passed before the court.
Government sources for this topic. Rules change — confirm the current position before you rely on it.
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