Challenging a will

Wills are usually challenged because there is a suspicion that the person making the will did not have the mental capacity to make a will (because they had dementia for example), or because duress is suspected or somebody influenced or coerced the person into making the will.

The usual way to challenge a will's validity is to challenge the grant of probate.

Example

John Smith signed a will shortly before he died. He had 3 children. 1 of his 3 children was born late in his life, to his second wife.

The new will means that his entire estate is now split 50-50 between his second wife and his third child. His previous will divided his estate in quarters, with a quarter each to his 3 children and a quarter to his second wife.

John Smith's 2 eldest children suspect he lacked the necessary mental capacity at the time he signed his will. 

He had only just been admitted to hospital after being diagnosed with brain cancer. He then stayed in hospital for the remaining 3 weeks of his life, in intensive care. The will was drafted by a lawyer, who was a long-time friend of Mr Smith. It was witnessed by the lawyer’s adult child and the lawyer’s secretary.

The 2 older children want to:

  • put a halt to probate being granted, and
  • commence proceedings in the Supreme Court of Western Australia to challenge the validity of the will.