Making a valid Will is extremely important as you decide how your estate will be divided and as to what proportions or in kind. Without a Will the decision as to who will benefit from your estate is beyond your control, instead being interpreted in accordance with the provisions of the Administration and Probate Act 1958 (Vic). As when a person dies without a valid Will they are said to die ‘intestate’.
You cannot totally guard against challenges to the validity of a Will. However, a well drafted Will should provide an effective defence against claims as poorly drafted Wills are easily challenged by those who feel they have a claim.
Situations in which a Will may be contested.
It is unlikely that a validly made Will shall be overturned. Generally, any challenge will revolve around whether the document that purports to be the Last Will and Testament of the Deceased is valid. The grounds on which such an assertion could be made may include the following:
- a later Last Will and Testament has been made by the Deceased;
- the document is invalid due to a failure to follow the correct formalities;
- the Will has since been revoked;
- the Will was altered after it was signed;
- the Will was procured via fraud or undue influence;
- the Deceased lacked the mental capacity to make the Will.
Challenging a valid Will – Testator Family Maintenance Claim (TFM)
Velos & Velos can also assist in challenging a valid will. If a Will is valid, there may still be room for a party to claim that they have not received adequate provision under the Will as part of a Testator Family Maintenance Claim.