contesting a will

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now
A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the party who made the will) or that the will is otherwise invalid. Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud. A will may be challenged in its entirety or in part.
Courts and legislation generally feel a strong obligation to uphold the final wishes of a testator, and, without compelling evidence to the contrary, "the law presumes that a will is valid and accurately reflects the wishes of the person who wrote it".A will may include an in terrorem clause, with language along the lines of "any person who contests this will shall forfeit his legacy", which operates to disinherit any person who challenges the validity of the will. Such no-contest clauses are permitted under the Uniform Probate Code, which most American states follow at least in part. However, since the clause is within the will itself, a successful challenge to the will renders the clause meaningless. Many states consider such clauses void as a matter of public policy or valid only if a will is contested without probable cause.This article mainly discusses American law and cases. Will contests are more common in the US States than in other countries. This prevalence of will contests in the US is partly because American law gives people a large degree of freedom in disposing of their property and also because "a number of incentives for suing exist in American law outside of the merits of the litigation itself". Most other legal traditions enforce some type of forced heirship, requiring that a testator leave at least some assets to their family, particularly the spouse and children.

View More On
  1. B

    QLD Add additional beneficiaries to Will

    Hi. I reside in Queensland, Australia. My father-in-law died recently leaving a valid Will which divides his estate (consisting of $400k in cash) equally between his son and daughter (my wife). My wife wants to pass some of the money on to our two children ($50k each) in such a way that there...
  2. H

    QLD Can Exectutor contest?

    We've asked this question of 2 lawyers and both have said no, but online says yes and the executors' lawyer reckons he can. But what of conflict of interest? It really sucks as we can't afford a lawyer to intercede on behalf of our interests as beneficiary and he's got a lawyer on no win no fee...
  3. M

    NSW Contesting a Will and chanlenging the validity of a Will

    A few years ago my brother came to my house and told me what was in his Will which was prepared by an independent solicitor and his ex-wife who still lived in the property and who works in a legal office, has given Probate a Will that is nothing like my brother's wishes giving her everything and...
  4. A

    QLD Non-beneficiary contesting Will

    My grandmother passed away March this year and left her home and estate to myself, my brother and my cousin. My uncle (her Son) is contesting her wishes wanting half of the estate and her house. In the past he had to declare bankruptcy, he was abusive to his wife and daughter, he was a gambler...
  5. G


    Hi, my father who is 89 is having to contest his late wife's Will under Family Provision as he was not left anything. The process has taken 9 months so far and he is waiting for the Probate Court to make a decision. He is wondering what will happen if he passes away before the dealings are...
  6. S

    NSW Beneficiary/Executor is threatening to seek a greater share of the will

    Hi Everyone, My mother and her sister (my aunt) were named 50/50 equal beneficiaries of a house left to them by their Uncle. My aunt is also the Executor of the will. My aunt has been very unforthcoming with information about the estate and has shared few details with my mum about when the...
  7. D

    VIC Wife wanting to Contest a will

    My wifes Father past away she never met him and he is not on the birth certificate . He has his own family to another marriage, can my wife contest this will all she has is a legal declaration that he is the father .
  8. M

    VIC Opinions on Contest a Will?

    My elderly mother has recently passed away. My father died years ago and an older sibling, who lived with them, became my mother's carer, as she had dementia...although died from cancer. Both my mother and father had the same will originally, leaving the deceased estate to each other, and if /...
  9. K

    VIC Contesting a will disabled grandson

    Advice regarding disabled grandsons entitlements for grandfathers will.
  10. A

    WA Contesting a Will - Seeking recommendations

    Hi, looking for recommendations for legal advice in contesting a will in WA. Good and bad experiences are appreciated for consideration. Prefer either around CBD or North of River. Thanks, Andrew