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Legal > Aged Care & Elder Law

Challenging a Will:

Overview FAQs Articles Locations

There are certain legal requirements that must be satisfied in order for a will to be valid.  Some of these requirements include that the will, will be: 

 In writing; 

  • Signed by the testator, that is, the person making the will; 
  • Witnessed by two persons who are not beneficiaries under the will; 
  • Signed by those two witnesses; 
  • Made without undue influence or duress;
  • Executed by a testator who has testamentary capacity. Testamentary capacity is the ability of the testator to understand matters such as:
    • The legal effects of the will;
    • The property that forms a part of the estate;
    • When the will comes into effect;
    • Who may be able to make a claim against the estate;
    • Any risks associated with the intentions expressed within the will.

 Invalidity of the Will

The Court has the power to revoke any will made without the requisite capacity. This may result in the Court upholding an earlier will executed by the testator, or alternatively, if there was no prior will, the laws of intestacy will apply.  

 Disputes about Provisions under the Will

If a dispute relates to the provisions made under the will, as opposed to the validity of the will itself, then it may be possible for a family provision claim to be made against the estate. This application is made to the Court by a family member, dependent or close friend of the testator within 12 months of the testator's death.

 A family provision claim is commonly made by persons who have been excluded from the will or who inherit an amount substantially less than other beneficiaries. If a family provision order is made by the Court, it will specify the amount the applicant will be awarded from the estate.  

 If you wish to challenge a will or if you are involved in a family provision claim against an estate, we recommend that you contact our office and arrange an appointment to see one of Aged Care & Elder Law Solicitors in our Sydney office. By appointment, we can also arrange a time for you to see one of our lawyers at a branch office. For a complete listing of our branches please see our "Locations" tab.

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This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.

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