LawAccess: General Information: Wills: Challenging a Will Page 1 of 5

Info Sheet
Wills

Challenging a Will
There are several ways in which a will can be challenged, and there are a number of
people who can challenge it.

• Invalid wills – the legal validity of a will can be challenged if, for example, it
wasn’t made and witnessed in the proper way.
• Family Protection Act 1955 – a family member can challenge a will under the
Act on the grounds that they weren’t provided for adequately in the will.
• Relationship property – the will-maker’s spouse or partner can apply under the
Property (Relationships) Act 1976 to receive half of the relationship property if
not satisfied with what he or she has been left under the will.
• “Testamentary promises” – if the will-maker broke a promise to provide for
you in their will, in return for work or services that you provided, you can
apply to the courts under the Law Reform (Testamentary Promises) Act 1949.

Challenging the Legal Validity of a Will

Grounds on which a will’s validity might be challenged
The legal validity of a will might be challenged on the ground that, for example:

• the will wasn’t properly signed and witnessed

• the will-maker didn’t have full mental capacity (wasn’t of sound mind) when
he or she signed the will
• that the will-maker didn’t in fact know what was in the will when he or she
signed it
• that a beneficiary under the will put undue influence on the will-maker to
leave property to them.

How do I go about challenging a will?

If you intend to challenge the validity of a will you’ll need to contest the issue in the High
Court. The process is complex and will involve a High Court trial; you’ll need a lawyer for
this.

You should file a caveat (warning) with the High Court as soon as you decide to challenge
the will. This means that the executor is required to notify you and serve copies of the
documents on you when they apply to the High Court for probate (court approval) of the
will. You’re then a respondent to the application, and can file documents with the Court to
make your case that the will is legally invalid.
What happens if the Court declares that the will is invalid?
If the High Court decides the will is invalid, it means:

• any earlier will is reinstated, or

• if there isn’t an earlier will, the deceased’s property will be dealt with under
the laws of intestacy.

Claims by relatives under Family Protection Act 1955

If a person dies without properly providing for close relatives in their will, those relatives
can make a claim to the Family Court or the High Court under the Family Protection Act
1955.

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If you claim under the Act, you must show that the will-maker had a moral duty to provide
for you in their will, and that the will-maker failed to do this, or failed to do this
adequately.

If the Court accepts your claim, it can make an order for you to be provided for out of the
will-maker's estate.
Who can claim under the Act?
Claims under the Family Protection Act can be made by or on behalf of any of the following
relatives:

• a spouse or civil union partner

• a de facto partner of at least three years (and also shorter periods in some
cases – for example, if the couple had a child)
• children
• grandchildren (the Court will take into account whether the grandchild’s
parents were provided for in the will)
• dependant stepchildren
• parents, but only in some cases – for example, if the will-maker died with no
living spouse or partner or children.

How will the Court decide my claim?

The Court will consider:

• whether you’ve been left anything in the will

• what the will-maker’s opinions and wishes were
• your age and state of health, your ability to earn a living, and your present
financial position
• the size of the estate
• your character and conduct
• whether any other person has a legal or moral duty to financially support you.

Is there a time limit on making a claim?

You must file your claim within 12 months after probate is granted for the will. The Court
can extend this time limit, but not if the estate has already been distributed.
Preventing a claim under the Family Protection Act
If you’re making a will and planning your affairs, there are some ways you can lessen the
chance of a claim against your estate under the Family Protection Act after you die.

• Putting property into joint ownership – if property is owned by two people

jointly and one of them dies, ownership automatically goes to the other
person and won’t form part of the deceased person’s estate. Therefore no
claim can be made against it under the Family Protection Act.
• Gifting propert before death - if you gift property so that it won't be a part of
your estate, write it into your will so that it's clear you're making a gift. (Gifts
made on or after October 1 2011 are no longer subject to gift duty; for gifts
made before that date, the rule is that if the gift is worth more than $27,000,
or if the totaly value of all gifts made within 12 months is more than $27,000,
gift duty must be paid).
• Making a contract to leave property by will – if you do this, the contract can
be enforced like any other contract, and the property can’t then be dealt with
by an order under the Family Protection Act.
• Leaving a written explanation – if you leave an explanation in writing of why
you’ve left property to certain people, this won’t necessarily prevent a claim
under the Act, but the Court may be more likely to reject the challenge to
your will.

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Claims by Spouse or Partner under Property (Relationships) Act

1976

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If your spouse or partner has died, the Property (Relationships) Act gives you the option of
either:

• applying for the property of the relationship to be divided under that Act, in
the same way as if the two of you had separated, or
• taking what your spouse or partner left you in their will (or, if there’s no will,
taking what you’re entitled to under the laws of intestacy).

You can do this if you and the deceased were:

• married
• in a civil union, or
• in a de facto relationship for at least three years (and in some cases when the
relationship was shorter than that, including where you had a child together).

If you choose to claim under the Property (Relationships) Act, your claim has priority over
all other people claiming from your spouse or partner’s estate. This includes anyone who is
left property under the will (or who is entitled to property under the laws of intestacy) and
anyone who claims under the Family Protection Act or the Law Reform (Testamentary
Promises) Act. In this way, the law ensures that one spouse or partner is not able to give
away the other’s share of relationship property in their will.
How is the deceased’s property divided under the Property (Relationships) Act?
The rules that govern the division of property when a spouse or partner dies are largely
the same as those that apply when a couple separate. If the relationship has lasted at
least three years, the general rule is that the surviving spouse or partner gets half of the
relationship property – for more information about these rules, see Info sheet Family Law
– Adult Relationships.

However, there are two significant presumptions in favour of the surviving spouse or
partner under the Property (Relationships) Act, which apply unless there’s evidence to
show otherwise:

• all property owned by the deceased spouse or partner when he or she died is
relationship property.
• all property acquired by the estate of the deceased spouse or partner is
relationship property.

The following won’t be presumed to be relationship property:

• property that you and your spouse or partner agreed, under a contracting-out
agreement, wouldn’t be relationship property. For information about these
agreements, including when the courts can override them, see Info sheet
Family Law – Adult Relationships.
• property that your spouse or partner inherited or was gifted in some way
(including by a trust), unless that property became intermingled with
relationship property. It will be up to you, the surviving spouse or partner, to
prove that it was intermingled with relationship property.

Notifying the courts and others of your choice

If you decide that you will claim your share of relationship property, you must give notice
of your decision, using a special form, to the executor or administrator of your spouse or
partner’s estate, or to the High Court if probate hasn’t been granted for the will. Include a
signed certificate from your lawyer, stating that they’ve explained to you the effect and
implications of choosing to apply under the Property (Relationships) Act.

You usually can’t change your mind once you’ve made this choice. However, the Court can
set aside your choice if it thinks it would be unjust to hold you to it.

Giving notice of your choice isn’t the same thing as applying to the Family Court under the
Property (Relationships) Act – it’s a separate, earlier step.

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How much time do I have to make my choice?

You must make your choice within six months after the Court grants probate for the will
(or, if there’s no will, within six months after the Court appoints an administrator for the
estate).

However, if the estate is small, so that probate or an administrator is unnecessary, you

must make your choice within six months after your spouse or partner’s death.
How much time do I have to apply under the Act for the property to be divided?
You must apply within 12 months after the Court grants probate for the will (or, if there’s
no will, within six months after the Court appoints an administrator for the estate).

However, if the estate is small, so that probate or an administrator is unnecessary, you

must apply within 12 months after your spouse or partner’s death.
What happens if I don’t make my choice or apply within the time limits?
If you miss the time limit for making your choice or applying to the Court, the executor of
your spouse or partner’s estate can distribute it according to the will (or, if there’s no will,
the administrator of the estate can distribute it according to the laws of intestacy).

The courts can extend the time limits, provided the estate hasn’t yet been fully distributed.
If the estate had been partly distributed before the executor or administrator was notified
that a time limit had been extended, the Court won’t undo the distribution of those
particular assets.
Special cases where survivor takes both relationship property and benefit of will
If you, the surviving spouse or partner, choose to apply under the Property (Relationships)
Act, usually you won’t be treated as a beneficiary under the will or under the laws of
intestacy.

However, in special cases the Court can allow you to take both your share of relationship
property and your inheritance: the Court can do this if it thinks this is necessary to avoid
injustice, or if it’s clear that your spouse or partner intended you to take the gifts in the
will regardless of whether you also applied for your share of relationship property.

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Claims under Law Reform (Testamentary Promises) Act 1949

You can challenge a will under the Law Reform (Testamentary Promises) Act if the will-
maker breached a promise to leave you something in their will in return for work or
services that you provided them with while they were alive. For example, you may have
taken care of the will-maker when they were ill, or looked after their property, and the will
-maker had promised to see you right in their will.

You can apply to either the Family Court or the High Court.
Do I have to be a relative?
No – anyone can claim under the Act if they can show that they provided the work or
services and that the promise was made.
The promise
The will-maker must have promised to reward you by leaving you something in their will.
However, it’s not necessary for the promise to have been explicit – it could have been
implied by things the will-maker said or did.

Further, it’s not necessary for the will-maker to have made the promise before you
provided the work or services.

Sometimes it can be difficult to prove that a promise was made. You’ll need to provide
evidence, such as a letter to you from the will-maker, or a witness who heard the will-
maker make an oral promise to you. Previous wills can also be evidence of the will-maker’s
intentions.

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The work or services

The work or services you provided for the will-maker must have been during their lifetime,
not after they died.
How will the Court decide my claim?
The Court will consider all the circumstances of the case, including in particular:

• the circumstances in which you provided the work or services and in which the
will-maker made the promise
• the value of the work or services that you provided
• the value of what the will-maker promised you (if they promised a specific
amount or specific property)
• the total value of the will-maker’s estate
• any claims that other people have against the estate (beneficiaries under the
will and creditors, for instance).

What can the Court do?

The Court can award you, out of the estate, a payment that’s reasonable taking into
account all the circumstances.
Is there a time limit on making a claim?
Yes – you must file your claim with the courts within 12 months after probate (court
approval) is granted for the will. The Court can extend this time limit, but not if the estate
has already been distributed.

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(Updated: March 2012)

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