What grounds may I have to dispute a will?

Date: Apr 05, 2012

There are some cases where you may find it necessary to dispute a will, with the main two being if you have been left out entirely or not adequately provided for.

You are able to challenge a will under Chapter 3 of the Succession Act 2006, but only if you are able to offer clear and legitimate reasons as to why you should be considered a beneficiary.

It may be the case that you do not believe the will to be valid, which could arise due to a number of reasons.

For example, you may be aware of a more recent will made by the deceased, or know that it was altered after initially being signed.

In order for any changes to a will to be valid, the person should have added a codicil to the original document - this means that all previous instructions are revoked in favour of the latest addition.

In the majority of cases, a codicil is added to bring about minor changes - such as the appointment of a different executor - but it is possible for this amendment to replace the entire will.

However, for a codicil to be valid, it needs to have been signed by the owner of the will, as well as either two or three witnesses who do not stand to benefit from it and the beneficiary in question.

Should you suspect that one or several of these requirements have not been met, then it may be possible for you to dispute a will and have its instructions reassessed.

It is not uncommon for codicils to be called into question if they have been made in extenuating circumstances, such as when the individual is unwell or coerced into doing so by somebody else.

The issue of capacity to make a will is one that often leads to disputes - and can be especially difficult to argue.

In most cases, the individual needs to show that they are aware of what a will is and how many assets they have to distribute in the event of their death.

Another thing the testator must demonstrate is that they are aware of their moral obligations towards their loved ones and they are not suffering from mental illness at the time the amendments are made.

Lawyers' advice and expertise should be used when drafting, executing and witnessing a will, otherwise there could be grounds for dispute at a later stage.