This is the second in our series answering common questions about Estate and Probate disputes.

Challenging the validity of a Will is different to challenging a distribution under a Will – which was the topic of Part 1 in our series.

A challenge to validity is typically made where there are concerns about how a Will has been prepared and executed.

Typically, a challenge to the validity of a Will is made on the grounds:

  1. The Will has not been properly executed;
  2. The Willmaker lacked capacity – i.e. they were not of sound mind, memory and understanding;
  3. There has been undue influence or fraud.

The most common issue is whether the Willmaker had the necessary mental capacity to make a valid Will.

In broad terms, the Willmaker must be aware:

  1. they are going to make a Will;
  2. of the nature and value of their estate;
  3. of people they should consider who might have an entitlement to receive a benefit and have the ability to evaluate the appropriateness of any claim of such person.

A claim that a person has been unduly influenced when making their Will can be difficult to prove.

To demonstrate undue influence, it must be shown that the intentions of the Willmaker were overborne by somebody else, that the Will maker was actually “coerced”.

If Probate of a Will is granted, it can be very difficult to overturn that Grant so any dispute concerning the validity of a Will needs to be actioned promptly.