There are several different types of Will challenges that can be made after a person dies. However, they all fall within two general categories: challenging the actual document itself or challenging the contents of the document.
A person might challenge the document itself if they believe:
- all or part of the Will was not written or approved by the deceased;
- there is a later Will that should be considered;
- the deceased did not have capacity to make the Will (for example, their mental faculties were impaired by drugs or disease); or
- the deceased was coerced into making the Will against their own free will.
These types of challenges are less common.
People more commonly challenge the contents of a Will because they are unhappy with the gifts left to them or they have been left nothing at all. These challenges are called ‘family provision’ or ‘family maintenance’ applications.
There are strict time limits and procedural requirements that must be complied with for all Will challenges and it is very important that you follow the correct procedure. If you do not, the court might order you to pay the other parties’ costs that were ‘thrown away’ by you pursuing the wrong procedure.