What are the most common grounds for challenging a will? February 5, 2025

A challenge to a will can only be made in particular circumstances, according to Victorian laws

Testamentary freedom is a fundamental will-making principle, meaning that a will-maker should be able to leave their estate to whoever they choose. But some circumstances can change this. For example, the will-maker may not have been free to make decisions about their will because of an agreement they had made earlier, or they may not have had the mental capacity to do so. 

Challenging a will is an important legal process requiring an in-depth analysis of the will-maker’s intentions, mental capacity at the relevant time, or whether there was any influence in the will-making process. 

Read on to learn more about the most common grounds for challenging a will and how the legal process works.  

What does it mean to challenge a will?

When someone challenges a will, they are challenging its validity. It means they have serious concerns about issues such as how and when the will was made. 

Challenging a will is different from contesting a will, which usually happens when someone claims a share (or a larger share) of the will-maker’s estate. These claims are also known as testator family maintenance claims, Part IV claims, or family provision claims. An example of contesting a will is where a person who is eligible to make a claim says the will-maker didn’t adequately provide for them.

What are the most common grounds for challenging a will?

The most common grounds for challenging a will include:

• lack of testamentary capacity
• undue influence
• fraud.

Let’s take a closer look. 

Lack of testamentary capacity

Lack of testamentary capacity means the will-maker didn’t have the legal capacity to understand the effect of what they were doing when making the will.

Under Victorian laws, the will-maker must have capacity when making and executing the will. This means:

1. when deciding what the will should say, and 
2. when signing the will. 

There are several criteria to test capacity. Not only must the will-maker know that they’re making a will and the effects of making the will, but they should also understand:

• what assets they have
• what debts they have 
• who they need to provide for. 

Severe medical conditions such as dementia, alcoholism or significant drug abuse may also affect capacity.

Testamentary capacity can be a particular issue for senior will-makers because some diseases affecting capacity are more often seen in older generations. One example is Alzheimer’s Disease, which is a type of dementia. 

Undue influence

Undue influence means someone forced or improperly encouraged the will-maker to make the will in a certain way. In other words, the will-maker couldn’t exercise free choice. 

Undue influence is a serious issue because the will may not reflect the will-maker’s wishes. For a will to be valid, a will-maker must be able to exercise free choice at every stage of the process, from making the will to signing it.

Sometimes, older people are particularly vulnerable to undue influence, especially if a close relative is the source. 

Fraud

Where fraud is suspected, it means someone used illegal tactics such as deception to ensure the will would be made in a certain way. Examples include:

• destroying or hiding a valid will in favour of an earlier will
• forging signatures of the will-maker, witnesses, or both
• forging a will after the will-maker’s death
• misleading the will-maker or giving them false information to influence their will. 

What are other grounds for challenging a will?

Other grounds for challenging a will are less common but equally as serious. They include:

The will-maker is unaware of what’s in the will

This goes against the requirement that the will-maker must understand and approve the contents of their will.

The will isn’t correctly executed

Victorian laws have specific requirements for making and signing wills. If these requirements aren’t met, the will may be invalid in whole or in part. 

For example, a will must be:

• in writing
• signed and dated by the will-maker in the correct way
• witnessed correctly.

The will-maker must also have the capacity to make the will, and they must intend to make it. 

There are special requirements for will-makers who can’t read or write.

A will shouldn’t be changed after it is signed. If changes are necessary, speak to us about making a new will.

Who can challenge a will?

In Victoria, only certain people can challenge the validity of a will. For example, any person named in a previous will of the will-maker (as executor or beneficiary). 

What’s the process for challenging a will?

Challenging a will is related to probate. 

Probate is a legal process in which the Probate Registry (part of the Supreme Court of Victoria) carefully checks the will. If it’s satisfied that the will is valid, the Registry grants probate, which gives the executor the authority to wind up the will-maker’s estate, pay debts and distribute the assets to the beneficiaries according to the will’s requirements. 

The executor is usually the person who applies for probate.  

Before probate is granted

If someone has reasonable grounds to challenge the will before probate is granted, they should lodge a caveat with the probate registry as an urgent first step. The caveat notifies their interest, and it temporarily stops probate from being granted. The aim is to prevent the estate from being finalised until the challenge can be resolved. 

If the caveat is unreasonable, the challenger may have to pay legal costs to remove it. We recommend seeking legal help if you’re considering challenging a will.

The Supreme Court usually hears these applications. Once it considers all the evidence, it will decide whether the will is valid, whether any part of it can remain, and what should happen next. 

For example, if the entire will is invalid, the Court may say that the intestacy laws will apply. Intestacy means there is no will. When this happens, there are special laws for distributing the estate. 

After probate is granted

If probate has already been granted, it’s not too late to challenge a will. Ideally a challenge should be within six months of the grant of probate. This process is more complicated if the executor has started winding up or distributing the estate. 

If a person successfully challenges the will after the grant of probate, the Court may order that probate be revoked. It means there is no longer any permission for the executor to wind up or distribute the estate. The situation is likely to be complex if the executor has already started this process. We recommend seeking legal advice if you’re considering challenging a will after the grant of probate.  

Can an executor challenge a will?

An executor can’t challenge a will because they would be taking legal action against themselves. But they can defend someone else’s challenge to the will. 

Unless the parties agree, the estate can’t be wound up and finalised until the Court has resolved any challenges. 

How do I protect my estate from a challenge to my will?

You can take steps to reduce the risk of a successful challenge to your will. 

There are two compelling reasons to take these steps:

1. If a challenge is successful, the Court may decide your will is invalid, and the laws of intestacy would apply. It means you would no longer have a say (via your will) about who benefits from your estate and what they receive.
2. While validity is being decided, legal costs will increase. The estate usually pays the legal costs, so the more prolonged the legal action, the higher the costs, potentially eroding your estate.

For these reasons, we recommend taking as many precautions as possible when making your will, such as:

• Engaging an experienced wills and estates lawyer to draft your will instead of using a will kit 
• Giving your lawyer details of your circumstances, including assets and liabilities
• Speaking to your lawyer about potential challenges to your will
• Making sure your lawyer helps to arrange and guide the signing and witnessing of your will 
• Being honest with your lawyer about your circumstances, including your family members and their circumstances
• Checking whether real estate assets, superannuation and life insurance can be included in your will
• Discussing any concerns about your capacity with your lawyer to work out the best approach. 

What should I do next?

Challenges to wills are most often due to questions about the will-maker’s capacity, undue influence, or fraud. These are all serious issues that potentially affect the integrity of the will-making process and the security of the will-maker’s assets. It’s critical to act quickly if you’re confronted with a question about a will’s validity. 

We recommend seeking advice from an experienced wills and estates lawyer to reduce the risk or impact of any challenge. Your lawyer can assess the risks and either minimise them or plan how to manage them.

Contact us to learn more about the common grounds for challenging a will in Victoria.