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Challenging Wills: what you need to know

  • November 1, 2023

Home " Legal Blog " Wills and Deceased Estate Administration " Challenging Wills: what you need to know

Challenging Wills: what you need to know

  • Grounds for challenging a will: a will may be challenged for the following reasons:
  • Evidence that the execution of the will was considered defective or interfered with.
  • Doubts about the testator's mental capacity or knowledge/approval of the contents of the will.
  • There are indications that the will was made under undue influence.
  • Wills show questionable circumstances that require in-depth probate court investigations.
  • Wills fail to provide adequately for some people, particularly where the maker is under a statutory obligation to do so (see Administration and Probate Act 1958 (Vic) or 'A&P Act').
  • Estates are not properly administered. Challenging a will can be complicated, costly and time-consuming. It is important to consult a legal expert before choosing this route. Interpreting an unclear will: if the meaning of a will is unclear, stakeholders can seek clarity from the courts. The court's role is to decode the language of the will in its clear context, rather than to discern the subjective intentions of the person making the will. The introduction of extrinsic evidence is mostly restricted, with some exceptions (s 22 Wills Act 1958 (Vic); s 36 Wills Act 1997 (Vic)). Family maintenance and wills: wills are usually honoured, but in some cases the court can modify them under the rules. For example, remedies may be available if the will fails to provide adequately for particular close family members. Different guidelines exist depending on the date of the deceased's death. Key factors include the size of the estate, the applicant's relationship to the deceased, and financial considerations. Importantly, if the court chooses to make adjustments, it aims to make the fewest changes to address negligence. Post-death legal actions and administering insolvent estates: Post-death legal actions: most legal actions (with a few exceptions) continue after the death of the individual involved (s 29 A&P Act). Administering insolvent estates: if the deceased's liabilities exceed their assets, the estate is dealt with differently, unlike a solvent estate. the A&P Act provides guidance on how assets are to be used to settle the liabilities of an insolvent estate. If the insolvency rules apply, the estate will be administered under the Bankruptcy Act 1966 (Cth) and the executors are excluded. Notably, life insurance policies and pension benefits are exempt from insolvency.The A&P Act provides a structure for settling estates with solvent debts.If you would like us to help you, pleaseclick hereLearn more, orContact Usof the office.

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