4 common reasons for challenging a will

Date: Aug 11, 2015

Wills are designed to make the process of distributing the deceased's assets to beneficiaries as easy as possible. They enable people to pass on money, possessions and investments to loved ones in a manner that best meets their final wishes.

Enlisting the services of a seasoned wills and estates lawyer to produce these documents is often the best way to mitigate the chances of an inheritance dispute following the death of the testator. Unfortunately, even the most skilfully written wills can still be challenged.

This article highlights some of the most common reasons why an individual may choose to contest a will.

1. Inadequate provisions

People often feel aggrieved if they believe they have received inadequate provisions from a loved one's will, particularly if they have been left out entirely.

In these cases, eligible individuals can pursue a family provision claim to try and increase their share of the estate. Those who are entitled to claim include spouses, de-facto and same-sex partners, children and dependents, among others.

2. The deceased lacked testamentary capacity

A will can only be considered valid if the person signing the document had the necessary testamentary capacity to do so. In other words, they must be of sound mind and understand the purpose of writing a will.

This could be an issue with people who suffer dementia or other problems that affect cognitive functions. It is also common to challenge a will if an individual believes the deceased was tricked or coerced into writing one.

3. The will is a suspected forgery

Faking a will is a serious offence, so it's important for people who wish to accuse someone of this crime to be absolutely sure before proceeding. Discussing the situation with an experienced lawyer is also important. 

If the latest will is markedly different to earlier versions or contradicts what the deceased implied about their intentions before passing away, this could indicate a forgery. Another warning sign is when an unexpected beneficiary receives a disproportionate share of the estate.

4. Disagreements over testamentary trusts

People often set up testamentary trusts for loved ones in their will, which hold assets on behalf of a beneficiary while preventing them direct access. A chosen trustee oversees the trust and must typically approve any distribution of the assets contained within.

However, the beneficiary can choose to challenge the terms of the arrangement or the appointed trustee if they are unhappy with the current setup.