Contesting Wills – Invalidity

This article explains how a Will may be contested by arguing that it is invalid. The main basis for arguing invalidity is that the Will as presented to the probate registry was not the Will the deceased intended to be their last Will and testament. There are various reasons why someone might argue this to be the case, including that:

• the Will in question was not the last Will made by the deceased;
• the deceased either lacked mental capacity to make a Will or did not understand it;
• undue pressure was placed on the deceased to make the Will;

• some fraud or forgery was involved in making the Will; or
• the Will presented to the court had, prior to the deceased’s death, been revoked.

If the court approves the Will, the court will make what is known as a ‘grant in solemn form’. However, if the court finds that the Will did not accurately reflect the intentions of the deceased, the court may rectify the Will so that it accurately reflects the deceased’s intention

The application for a rectification of a Will that is believed to be invalid must be done within 6 months of the grant of probate. Applying after this time will limit the ability of the court to fully examine and rectify the terms of the Will.

When the court considers whether a Will is invalid, it must first interpret the Will. In doing so, the Court cannot rely upon external evidence. It can only interpret the Will based on what is contained within it. A limited exception to this is if a particular term in Will fails to make sense in the circumstances.

At Straits Lawyers, we provide advice on all aspects of Wills and Estates, regardless of whether you are making or contesting a Will. If you would like to discuss this further, simply email us at info@straitslawyers.com or call at 08 8410 9069 to arrange an appointment.

Please note that this article does not constitute legal advice and Straits Lawyers will not be legally responsible for any actions you take based on this article.