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Validity of a Will

How to challenge the validity of a Will.

Challenging the validity of a Will is most commonly based on following grounds:

  • the Will-maker did not have testamentary capacity (not able to understand what a Will is, what assets they had to leave or who they wish to distribute to)
  • the Will-maker signed the Will under duress (an overbearing of the testator’s will)
  • the Will was not executed according to law (a written document signed in presence of witnesses), or
  • there is another Will that was executed later.

How to challenge the validity of a Will

Any person who wants to challenge the validity of a Will should lodge a caveat at the Probate Office. This is to try to prevent the grant of probate from being given.

It is important to act immediately, as the executors of the Will may have already lodged an application with the Probate Office.

A caveat shall expire 6 months after it is lodged, however the caveator (person challenging the Will) may renew the caveat if necessary.

The registrar will notify the caveator when the court receives an application for probate. The caveator has 30 days to file a statement of grounds of objection to the grant before the caveat expires. This statement is filed with the court registrar.

The caveator then has 7 days to make an application to court for directions. If this is not done within 7 days, the Will-maker's representative may apply to the court for directions.

A directions application is made by way of a summons. A date will then be set down for a hearing of the challenge. The hearing must not take place less than 7 days from the date when the application is filed with the Probate Office.

More information

Legislation

Supreme Court (Administration and Probate) Rules 2014 (Vic)

  • o. 8—procedure for lodging a caveat to challenge validity of Will
  • o. 8.06—grounds for caveator's objection
  • o. 8.08—inclusive list of directions that a Judge may give
  • Forms—section sets out the required forms for various applications—use form 3-8A to use to lodge a caveat.

See Supreme Court (Administration and Probate) Rules 2014 (Vic).

Wills Act 1997 (Vic)

This Act commenced operation on 20 July 1998. It does not completely replace the 1958 Act. Some sections only apply to Wills made after this date.

  • s. 7—how should a Will be executed
  • s. 9—court may allow a document to probate even where it has not been properly executed
  • s. 36—court may consider acts, facts and circumstances to determine the Will-maker's intention

See Wills Act 1997 (Vic).

Wills Act 1958 (Vic)

This Act still applies to some aspects of Wills, particularly if the Will was made before 20 July 1998.

  • s. 7—what is required for a valid Will
  • s. 22A—court may consider acts, facts and circumstances to determine the Will-maker's intention if the Will is not clear

See Wills Act 1958 (Vic).

References

Lawyers Practice Manual

The Lawyers Practice Manual has information about challenging a Will.

See Challenging validity of a Will [13.4.301].

Supreme Court

Updated