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A common ground of attack on a will concerns the mental state of the testator at the time of making the will. Here are some (but by no means all) of the grounds for contesting a will and means of demonstrating that the testator lacked the proper testamentary capacity. It should be realised that it is actually not that easy , generally to challenge a Will!  Another Common ground to attack a Will is on a Statutory basis ; i.e. using "Family Law Provision" type claims ; i.e. If and only if it can be established that the Will Maker has filed to adequately provide for a Family member or some other person who was financially or in some other way dependant on the Will maker will such a claim succeed. In other words you are saying that the Will maker , the Testator made inadequate provision for the Family Member or other person who was dependant on them in  some way while they were alive.

There are complex Statutory provisions within the Succession Acts in the States and Territories which may or may not entitle some one (not only Family members but other depndants) to challenge a Will on the grounds that inadequate provision was made for them. Also there are a number of Court decisions with increasing levels of complexity as who does qualify............. Detailed advice needs to be sought from an expert Probate Wills Lawyer before any Court proceedings are even contemplated.

Requirements – The Basis of a Challenge- "Capacity"

Generally, a will requires that the testator possess “testamentary capacity”.  This concept covers requirements such as:

  • Being over 18 years of age (or in most jurisdictions, being under this age and married or making a will in contemplation of marriage);
  • Having a sound mind, memory and understanding at the time of making the will (that is, being sane and having a clear understanding of the effect of the will);
  • Possessing an intention to make the will (as opposed to merely recording ideas or rough plans).


When can a Will be Contested?

The onus of showing the testator's capacity lies on the person who asserts that the testator possessed testamentary capacity.  If the will on its face appears to be valid, the court is unlikely to enquire too much further into the testator's intentions.

In instances of a clear lack of mental capacity, the grounds for contesting the testator's capacity are likely to be quite obvious.  The key requirement is to demonstrate that the lack of mental capacity affected the testator's ability to make decisions at the time of the will.  Thus, suffering delusions after making a will would not create a ground for challenging a will.  In addition, as there is a general presumption that the testator is of sound mental capacity, merely being old at the time the will was made is not a sufficient means of showing a lack of testamentary capacity.

However, there are a number of circumstances that might help to show that the testator lacked the requisite understanding when making the will if circumstances are less clear:

  • The testator was under outside influence that altered their understanding of their financial or family situation (eg they relied heavily on an accountant who mislead the testator as to the extent of their assets);
  • The testator gave instructions to somebody else to prepare the will for them (such as a beneficiary under it or a close relative);
  • The testator was merely making notes or general plans and did not intend that the document actually constitute their final will; or
  • Conditions or statements in the will demonstrate that the testator either did not fully understand their situation.


Mounting a Challenge

Should you decide to contest the will, you will benefit from having the assistance of a qualified lawyer.  Succession is a subtle area of the law, where the court often has to make hard decisions on the quality of witnesses and their evidence.

To this end, it can help to try to separate the emotional aspects of your challenge from the evidence that you are presenting.  Keeping copies of any letters or emails from the testator, or holding on to any video footage, will help in showing what mental state the testator was in.