The short answer, unfortunately, is yes. However, there are steps you can take to reduce the risk of your Will being challenged or contested once you have died. There are also legal restrictions in place, limiting those who are eligible to make a claim.
First of all, it is important to recognise that a Will can be challenged or contested. These have two separate meanings.
Challenging a Will
To “challenge” a Will is to claim that the Will is invalid. In our experience, Wills are most commonly challenged for the following reasons:
- It is claimed that the Will maker did not have “testamentary capacity” to make a Will when they signed it; and/or
- That the Will was made under influence from others.
These issues arise mostly with elderly and vulnerable Will Makers. The best way to combat the first of these issues is to obtain a Testamentary Capacity Certificate from your Medical Practitioner at the time of signing your Will. Your solicitor can keep your Certificate on file and produce it if necessary. To satisfy the test of Testamentary Capacity you must:
- Understand the nature and effect of a Will;
- Understand the extent of the property subject of the Will;
- Comprehend the moral claims of potential beneficiaries; and
- Not be suffering from a disorder of the mind that would interfere with free testamentary capacity.
Your medical practitioner should base their assessment on these 4 elements as a measure to prevent challenges to your Will in the future.
In relation to the Will maker being under the influence of others, it is recommended to ensure your Will is prepared by a lawyer. The lawyer will ask questions, take notes and advise concerning this. The lawyer will also ensure that the instructions are taken directly from the Will Maker and nobody else.
Contesting a Will
Here we are talking not about challenging the validity of the Will, contesting a Will refers to claims that:
- The deceased had a moral duty to the claimant; and
- The Will fails to make adequate provision for the claimant.
Your Will can be contested, by an eligible person, that has been left out of the Will or if they feel they have been treated unfairly in the Will. This is commonly called a Part IV claim or a “family provision order”.
Prior to 2015, there was no legal definition of “eligible person” and the claim process was very flexible. It became a bit more difficult when “eligible person” was given a legal definition in 2015, placing limitations on who and who is not entitled to make a claim against a Will.
An eligible person can include:
- spouse or domestic partner of the deceased at the time of death;
- child of the deceased;
- a former spouse or former domestic partner, etc.
Time limits also apply to a Part IV claim.
This is general advice only. There are many more considerations the Court will make when assessing a claim against a Will, contact us on 9435 9044 if you would like to learn more.
 Administration and Probate Act 1958 (Vic) s 90.