Wills & Estates Lawyers › Challenging Will Validity
Challenging Will Validity Lawyers — Capacity. Undue Influence. Fraud.
Not every will reflects the true wishes of the person who made it. A will can be challenged on the grounds that the testator lacked testamentary capacity, was subject to undue influence or coercion, was the victim of fraud, or that the will was not properly executed. Where a will is found to be invalid, the estate passes under a prior valid will or under the intestacy rules. A lawyer assesses the prospects of a validity challenge and manages the proceedings.
⚠ A caveat lodged in the probate registry prevents probate from being granted while a validity challenge is pursued — but it must be lodged promptly. Once the estate is distributed, recovery becomes significantly more difficult. Act now.
What We Help With
Challenging will validity — the recognised grounds.
Lack of Testamentary Capacity
A will is invalid if the testator lacked testamentary capacity at the time of signing. Common situations include: dementia or Alzheimer's disease; delirium caused by illness or medication; or serious mental illness affecting the testator's understanding of their assets or family obligations. A lawyer obtains and analyses medical records and expert evidence to assess a capacity challenge.
Undue Influence — Coercion by a Third Party
Undue influence occurs where the testator's will is overborne by another person — typically a carer, family member, or person in a position of trust — so that the will reflects the influencer's wishes rather than the testator's own free choices. Undue influence is notoriously difficult to prove (the testator cannot give evidence) but the surrounding circumstances — isolation, dependence, suspicious changes to the will — can support the inference.
Fraud — Forgery and Misrepresentation
A will is invalid if it was obtained by fraud — including forgery (the testator's signature is not genuine), misrepresentation (the testator was deceived about what they were signing), or a fraudulent promise (the testator was induced to sign by a promise that was not intended to be kept). Forgery of a will is also a serious criminal offence.
Improper Execution — Witnessing Failures
A will that was not correctly signed or witnessed fails to meet the formal requirements for a valid will and may be invalid. Common execution problems include: failure to sign in the presence of both witnesses simultaneously; the testator not personally signing (or directing another to sign on their behalf where they were incapable of signing); or witnesses who were beneficiaries (whose gifts may be void even if the will itself is valid).
Revocation — Prior Will Is the Valid Will
A will can be challenged on the basis that it was revoked — by a later valid will, by the testator's marriage, by destruction, or by the testator expressly revoking it. Where the "last" will is revoked (or invalid), an earlier will may take effect — or the estate passes on intestacy if no valid will remains.
Probate Caveats — Protecting Your Position
A caveat lodged in the Supreme Court probate registry prevents a grant of probate from being issued while the validity of the will is in dispute. Lodging a caveat protects the challenger's position — preventing the estate from being administered under an invalid will while the challenge is investigated and pursued. A lawyer advises on whether a caveat should be lodged and manages the caveat proceedings.
What the Law Says
Will validity — the legal framework.
The Banks v Goodfellow capacity test
The legal test for testamentary capacity was established in Banks v Goodfellow (1870) and has been consistently applied in Australian courts. The testator must, at the time of signing the will: understand the nature of making a will and its effects; understand the extent of the property they are disposing of; understand the claims of those who might expect to benefit (or have claims to be considered); and not suffer from a disorder of the mind that poisons their affections, perverts their sense of right, or prevents the exercise of their natural faculties in disposing of their property. Failure to satisfy any one element is sufficient to invalidate the will.
Undue influence — the high bar for proof
Proving undue influence requires showing that the pressure exerted on the testator was of a type and degree that overrode the testator's own volition — not merely persuasion, suggestion, or a request (which are legitimate). The burden of proof falls on the challenger, and the testator is no longer available to give evidence of what occurred. Courts assess the surrounding circumstances — the testator's dependency on the influencer, isolation from other family members, suspicious changes to prior wills, and the benefiting of the influencer at the expense of natural beneficiaries.
The presumption of due execution and how to rebut it
A will that appears regular on its face — signed by the testator and witnessed by two witnesses — is presumed to have been duly executed. To challenge the execution, the challenger must lead evidence rebutting this presumption — typically by calling the witnesses to give evidence about what actually occurred at the signing, or by obtaining expert evidence (handwriting analysis) where forgery is alleged. The higher the evidential bar for the specific ground of challenge, the more important it is to gather evidence quickly — witnesses' memories fade and documents can be lost.
The "golden rule" — solicitors and aged testators
Where a solicitor is instructed to prepare a will by an elderly or seriously ill testator, the "golden rule" — described in Kenward v Adams [1975] CLY 3591 and followed in Australian courts — requires the solicitor to obtain and keep a medical certificate as to the testator's capacity before taking instructions. Failure to follow the golden rule may not invalidate the will but is relevant evidence in a capacity challenge — and reflects poorly on the will's preparation. A lawyer preparing a will for a testator of doubtful capacity should always obtain and keep a medical assessment.
If the will is declared invalid — what happens?
If a will is declared invalid by the court, the estate passes under the most recent prior valid will (if one exists) or, if there is no prior valid will, under the intestacy rules of the relevant state. A successful validity challenge does not guarantee that the challenger will benefit — the outcome depends on what the prior will says or how the intestacy rules operate. A lawyer assesses the likely outcome of a successful challenge before advising whether it is worth pursuing.
Costs in will validity disputes
Will validity proceedings are expensive and can take years. Costs generally follow the event — but courts have discretion to order costs from the estate where the challenge was justified by the circumstances (even if unsuccessful). Where the challenge arises from the conduct or negligence of the testator (or of a person who procured the invalid will), courts may be inclined to order the estate to bear costs. A lawyer advises realistically on the costs risk and likely recovery before proceedings are commenced.
How It Works
One request. A free will validity assessment.
Tell us the circumstances — when the will was made, the testator's health and cognitive state, who prepared the will, and what changed compared to earlier wills. A lawyer assesses the prospects of a validity challenge.
Submit Your RequestDescribe the circumstances
Tell us: the testator's age and health at the time the will was made; who prepared and witnessed the will; what changed from prior wills; who benefits under the disputed will; and any specific concerns about capacity, influence, or execution.
Free assessment of validity challenge prospects
A wills and estates lawyer assesses the strength of the capacity, undue influence, or execution challenge — advising on the evidence needed, the likely outcome, and whether a probate caveat should be lodged immediately.
Caveat, evidence gathering, and court proceedings
A lawyer lodges a caveat if needed, gathers medical records and witness evidence, and commences proceedings in the Supreme Court to challenge the will's validity.
Common Questions
Challenging will validity — frequently asked questions.
My elderly parent changed their will shortly before they died — can I challenge it?
A last-minute change to a will — particularly by an elderly or seriously ill testator — is a common trigger for a validity challenge. The key questions are: did the testator have testamentary capacity at the time of signing the new will (in light of their age and medical condition)? Were they subject to undue influence from a person who benefited from the change? Was the will prepared by a lawyer who followed the golden rule? A lawyer reviews the medical records, the will preparation circumstances, and the surrounding facts to give you a frank assessment of the prospects of a challenge.
What evidence do I need to challenge a will?
The key categories of evidence in a will validity challenge are: medical records (cognitive assessments, GP notes, specialist reports, hospital records, medication records) from around the time the will was made; the instructions given to the solicitor who prepared the will and any notes of the solicitor's assessment of capacity; evidence from people who knew the testator around the time the will was made — family, friends, carers, neighbours — about the testator's cognitive state and any isolation or dependency; and expert evidence from a geriatrician or neuropsychologist on the likely cognitive state at the relevant time. A lawyer identifies what evidence is available and obtains it.
Can I challenge a will if I'm not a beneficiary under any prior will?
Yes — if you would benefit from an intestacy (i.e., the deceased had no valid prior will, and under the intestacy rules you would inherit). A will validity challenge can be commenced by any person who has a financial interest in the outcome — including people who would benefit if the challenged will is declared invalid and the estate passes on intestacy. A lawyer identifies whether you have standing to challenge the will (i.e., a sufficient interest in the outcome) before advising whether the challenge is worth pursuing.