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Estate Challenges

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Kimberley Lawrence David Tyree
Kimberly Lawrence
Greg Kelly Law
David Tyree
Rainey Collins

Authors: Kimberly Lawrence, David Tyree
Published: 4 April 2019
Pages: 28


There are a number of different ways to challenge a will. Some challenges (pre-probate challenges) aim to have a will entirely set aside on the basis that it was not valid, for any one of a number of reasons. Pre-probate challenges will often be brought on the basis that the will-maker either lacked testamentary capacity when signing their will, or that their will was the product of undue influence, as opposed to a true and free expression of what the will-maker wanted. Pre-probate challenges are brought before probate of the will is granted and, if successful, the estate will pass in accordance with the most recent valid will or the intestacy rules. This paper will consider what might alert a lawyer to the possibility of bringing a pre-probate will challenge, the process for bringing a pre-probate challenge, and what will be relevant when trying to show a lack of testamentary capacity or the presence of undue influence.

Other will challenges (post-probate challenges) seek to change the provisions in a particular will. The validity of the will itself is not in issue, but the content is. Post-probate challenges are brought after probate of a will has been granted and they seek further provision for a particular person or people. This paper will specifically consider two of the most common types of claims: those brought under the FPA 1955; and the Law Reform (Testamentary Promises) Act 1949. It will discuss who can make these claims, what a claimant needs to make out, and common pitfalls involved in bringing a post-probate will challenge.

Content outline

  • Pre-Probate Will Challenges
  • Family Protection Act 1955 Claims
  • Law Reform (Testamentary Promises) Act 1949 Claims
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