When an older person remarries and leaves most of their estate to a new spouse, the Will is at greater risk of being challenged. Good planning cannot make a Will challenge-proof. It can make a challenge much less likely to succeed, and much less attractive to start.
Stepchildren can bring a claim
A common misunderstanding is that a stepchild, or a child who is not biologically related, has no standing to challenge a Will. In Victoria that is wrong. Under Part IV of the Administration and Probate Act 1958 (Vic), “eligible persons” who can apply for family provision include children, stepchildren and, in some cases, grandchildren. The Court of Appeal has confirmed that the child of a domestic partner can be a stepchild for this purpose.
An eligible person must still show that the Will did not make adequate provision for their proper maintenance and support. Adult children who are financially independent face a real hurdle, but the claim can still be costly to defend.
The two other common attacks
Beyond family provision claims, Wills made late in life are often challenged on two grounds:
- Lack of testamentary capacity: the Will-maker did not understand what they were signing, what they owned, or who might expect to benefit.
- Undue influence: someone, often the main beneficiary, pressured the Will-maker.
Practical steps that protect the Will
- Instructions come from the Will-maker alone. The lawyer should meet the Will-maker privately, without the main beneficiary present. Video meetings work well.
- Capacity evidence at the time. For an older Will-maker, a short letter or assessment from their GP or a geriatrician, close to the signing date, is strong evidence.
- A detailed file note. The lawyer records what was discussed, the Will-maker’s reasons, and their own words.
- A statement of reasons. A separate signed document can explain why the Will is structured as it is. It can record lifetime gifts already made to children or grandchildren, so a court can see they were not forgotten.
- Respectful wording. Describe family members accurately, for example “my stepson”, without critical or hurtful comments. Harsh words in a Will tend to provoke litigation, not prevent it.
- Use assets that pass outside the estate. Superannuation paid under a valid binding nomination and property held as joint tenants pass directly to the survivor.
Naming relatives who live overseas
Many of our clients leave gifts to family members in China, Hong Kong, Malaysia or elsewhere. Executors must be able to identify them clearly. We recommend:
- using the name as it appears in the person’s identity document, family name first where that is how it is written, for example “WANG Xiaoming”;
- adding the name in Chinese characters;
- adding a date of birth and an identity card or passport number.
An address is optional, as it may change. Consistent spelling avoids delay when an overseas bank or registry checks the beneficiary’s identity.
If shares are a large part of the estate, see also our article on shares, capital gains tax and Enduring Powers of Attorney.
How we can help
We prepare Wills for blended families and cross-border families, and we act in contested estates, so we know where Wills are attacked. We can meet the Will-maker in English, Mandarin or Cantonese, in person or online.
中文版: 重组家庭与晚年遗嘱 · 繁體中文版: 重組家庭與晚年遺囑: 如何降低遺囑被挑戰的風險
Call (03) 9602 3988 or email chuatan@tpg.com.au to book a consultation.
This article is general information only and is not legal, tax or financial advice. The law discussed is Victorian law and Commonwealth superannuation and tax law as at October 2026. Please obtain advice about your own circumstances.
Important: This article is general information only and must not be relied on. It is not legal, tax or financial advice, does not take your circumstances into account, and may not reflect changes in the law after publication. Laws of other countries may also apply. Do not act or refrain from acting on the basis of this article. Reading it or contacting us does not create a lawyer–client relationship. Please book a consultation for advice on your situation.
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