Challenging the Validity of a Will
Applications to set aside or challenge a will on grounds of lack of testamentary capacity, undue influence, fraud, forgery, suspicious circumstances or defective execution, run for beneficiaries who have been shut out of substantial estates by wills that should never have been admitted to probate.
What is a will validity challenge?
A will validity challenge is a court application to set aside a will (or a part of a will) on the ground that the will is not legally valid. Where the challenge succeeds, the invalid will is set aside, and the estate is distributed under an earlier valid will or (where no earlier valid will exists) under the state's intestacy rules.
Will validity challenges are conceptually different from family provision claims. In a family provision claim, the applicant accepts the will is valid and asks the court to order further provision from the estate. In a will validity challenge, the applicant says the will itself should not stand. See Family Provision Claims for the other pathway.
The two pathways are sometimes run together. A beneficiary might challenge the validity of the current will (arguing that an earlier will should govern), with a family provision claim as a fall-back if the validity challenge fails.
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Grounds on which a will can be challenged
There is a defined set of grounds on which an Australian court can set aside a will. Aptum runs each of them, but the practice weight sits at the top of the list: testamentary capacity, undue influence, and suspicious circumstances propounder challenges.
Lack of testamentary capacity
The testator did not have the mental capacity required by law to make a valid will at the time they made it. This is by a significant margin the most common substantive ground.
Undue influence
The testator was coerced into making the will (or particular provisions in it) by another person. Australia applies a very high threshold here (higher than the equivalent doctrine in equity for lifetime gifts). Actual coercion is required, not persuasion.
Suspicious circumstances (propounder challenges)
Where the circumstances surrounding the will's creation are such that they arouse the court's suspicion (a common example: a substantial beneficiary was involved in drafting or arranging the will), the person seeking to uphold the will (the propounder) carries the burden of dispelling that suspicion. This is a lower bar than undue influence and often the most practical challenge ground.
Fraud
The testator was deceived into making the will or particular provisions in it. Fraud is legally distinct from undue influence and usually harder to prove.
Forgery
The signature on the will (or parts of the will) was not made by the testator.
Defective execution
The will was not properly executed in accordance with the formal requirements of the relevant state Wills Act. Most jurisdictions have "dispensing powers" allowing informal wills to be admitted to probate where the court is satisfied the document represents the testator's testamentary intention, so pure formal defects rarely defeat a will on their own.
Revocation
The will has been revoked, either by a later valid will, by the testator's subsequent marriage (which revokes existing wills in most states except where made in contemplation of marriage), by physical destruction with intent to revoke, or by a formal written revocation.
Lack of knowledge and approval
The testator did not know and approve of the contents of the will. Often runs alongside a suspicious-circumstances challenge and is the technical framework for the beneficiary-involved-in-drafting scenario.
Rectification
Not a challenge to the will's validity, but an application to correct a clerical error or a failure to give effect to the testator's instructions. Usually uncontested but occasionally becomes a substantive dispute.
How Aptum runs a will validity matter
Value conversation
A no-cost first meeting where you tell us the background, describe the will and its history, and identify the beneficiary you say was improperly favoured or the earlier will you say should govern. We tell you which grounds are realistic on your facts, what evidence would be needed, and whether the matter warrants formal proceedings.
Pathways assessment
If the challenge is realistic and you want to move forward, we scope the matter, identify the medical, factual and drafting-history evidence needed, consider whether a caveat to probate should be lodged, and give you a costed engagement plan.
Execution
We run the matter. Caveat to probate if appropriate, formal exchange with the propounder, court application, discovery, expert medical evidence, mediation, and (where the matter does not settle) trial. We report throughout and manage the matter to the outcome, not the fee.
Testamentary capacity in detail
The leading authority on testamentary capacity in Australia is the 1870 English decision Banks v Goodfellow. It has been applied consistently in every Australian jurisdiction and remains the working test today. The testator must:
- Understand the nature of the act of making a will and its effects
- Understand the extent of the property being disposed of
- Comprehend and appreciate the claims of those to whom they ought to give effect (family members, dependants, others with moral claims)
- Be free from any disorder of the mind that poisons the affections, perverts the sense of right, or prevents the exercise of the natural faculties
What matters in evidence. Contemporary medical records from the period when the will was made are the single most important evidence source. GP notes, hospital records, specialist reports (particularly geriatrician, neurologist, psychiatrist), medication history, and any capacity assessments done at or near the time of the will. Aged care progress notes are often decisive in matters involving elderly testators.
The solicitor's file. Where the will was drafted by a solicitor, that solicitor's file (attendance notes, instructions letter, retainer, capacity notes if taken) is critical. Solicitors are increasingly diligent about recording capacity observations, and the presence or absence of those observations often decides the case.
Expert evidence. In contested capacity matters, one or more medical experts (typically retrospective capacity assessments by a geriatrician or old-age psychiatrist) are usually engaged. The court weighs the expert evidence alongside the contemporaneous records.
Undue influence in detail
Australian courts have deliberately maintained a very high threshold for undue influence in the will context, higher than the equivalent doctrine for lifetime gifts. The rationale is that a person's testamentary freedom is treated as a strong right that should not be lightly disturbed.
What is required. Actual coercion. The testator's free will must have been overborne, not merely influenced or persuaded. The classic formulation is that the testator's will must have been "coerced into doing what he or she did not desire to do."
Evidence typically required. Direct or circumstantial evidence of the coercive conduct. Isolation of the testator from family, control of access to the testator, aggressive pressure documented in the testator's own statements to third parties, threats regarding care or living arrangements.
Because the bar is so high, most challenges we see run as "suspicious circumstances" propounder challenges rather than as pure undue influence claims. The propounder-burden pathway is often the more productive angle where the underlying facts smell of pressure.
Suspicious circumstances (the practical challenge ground)
The suspicious circumstances doctrine operates on the burden of proof rather than as a separate ground of invalidity. Where circumstances surrounding the will's creation arouse suspicion, the person seeking probate must dispel that suspicion by showing the testator knew and approved of the contents of the will.
Circumstances that typically trigger the doctrine.
- A substantial beneficiary was involved in drafting or arranging the will (particularly where they instructed the solicitor or organised the appointment)
- The will was made under conditions of physical or mental frailty
- The will departs sharply from a prior estate plan or from natural expectations
- The testator was isolated from other family members at the time
- The will was made without independent legal advice
- The witnesses were connected with the beneficiary rather than the testator
Why this is often the practical challenge angle. The suspicious-circumstances doctrine does not require the challenger to prove undue influence or lack of capacity. It shifts the burden to the person defending the will to dispel the suspicion, which is often much harder for them than the challenger's burden was for the challenger.
Timing and caveats to probate
Will validity challenges do not have a strict statutory limitation period equivalent to the family provision windows. But there is a critical practical timing issue: once probate is granted, challenging the will becomes significantly harder.
Before probate is granted, a caveat can be lodged with the probate registry. A caveat means no grant will be issued without first hearing the caveator. This is the standard mechanism for pausing the process while the challenge is investigated.
After probate is granted, revocation of probate must be sought. This is a separate proceeding, and while it is available on the same substantive grounds, the executor has been in office in the meantime, distributions may have been made, and the matter runs on a compressed timeline.
Practical rule. If a will has been read and you have serious concerns about how it came about, act within days, not months. The caveat pathway is far cleaner than the revocation pathway.
How a will validity matter actually moves
Initial assessment and caveat
Investigate the will's history, order medical records, contact the drafting solicitor, and (where appropriate) lodge a caveat to prevent probate issuing.
Evidence gathering
Medical records, expert reports on retrospective capacity, solicitor's file, witness statements from family and treating clinicians, and (where the challenge is suspicious-circumstances-based) the drafting solicitor's attendance notes.
Formal exchange
Letter to the executor / propounder setting out the challenge and the evidence. Most matters produce a substantive response and open a negotiation window. Some resolve at this stage where the propounder's evidence is weak.
Proceedings
Originating process filed in the state Supreme Court (in Victoria, the Trusts, Equity and Probate List). Pleadings, discovery, expert evidence exchange, mediation.
Hearing
The court hears the evidence and decides whether the will is valid. Where the will is set aside, the estate is distributed under an earlier will (if any) or under the intestacy rules.
An accomplished farmer has his property protected in a family trusts dispute
Will validity challenges often intersect with disputes over the underlying estate assets. The pattern below is one Aptum sees regularly, where the substantive estate assets are held in a family trust rather than in the personal estate.
Our client was a farmer who had spent approximately 60 years prior to the dispute establishing and developing numerous farms that had grown to a combined value of more than AUD $15M. The properties were held in a property trust, and disputes over the trust structure and the deceased's succession intentions intersected with disputes over the underlying property.
What's changing in Australian will validity law
Dementia and capacity challenges are the growth area
As the Australian population ages, testators who make or vary wills in their 80s and 90s are increasingly the subject of contested capacity challenges. Contemporary aged-care and specialist records are becoming decisive evidence.
Solicitor file quality is under scrutiny
Where a solicitor drafted a will for a testator with any capacity concerns, courts increasingly expect to see contemporaneous capacity notes, adherence to the Law Council's capacity guidelines, and (in higher-concern cases) a medical opinion at the time of instruction. Absent solicitor files are increasingly treated as tending to support challenges.
Digital wills and electronic execution
Every state now has a dispensing power to admit non-standard documents (including text messages, video recordings and unsigned drafts) as valid wills where the court is satisfied they represent the testator's testamentary intention. This has produced a growing body of case law and a shift in what "defective execution" actually means.
Predatory marriage cases
The rule that marriage revokes an existing will has produced a class of cases where a late-life marriage (sometimes with capacity concerns) revokes a carefully-planned estate. Some states are reviewing the automatic-revocation rule.
Frequently asked questions
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On what grounds can a will be challenged?
The main grounds are lack of testamentary capacity, undue influence, suspicious circumstances (including lack of knowledge and approval), fraud, forgery, defective execution, and revocation by a later will or by marriage. Testamentary capacity and suspicious circumstances are the most commonly successful grounds.
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What is testamentary capacity?
The mental capacity required to make a valid will. The test comes from the 1870 case Banks v Goodfellow and remains the working standard in Australia: the testator must understand the nature and effect of making a will, understand the extent of their property, appreciate the claims of those who ought to be considered, and be free from any disorder of mind that distorts their judgement.
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What is the difference between undue influence and unconscionable dealing?
Undue influence in wills requires actual coercion, meaning the testator's free will must have been overborne. Australian courts apply a very high threshold. Unconscionable dealing is a distinct doctrine used more often in transactions and gifts made during life. Most will challenges that appear to involve pressure actually run as suspicious-circumstances propounder challenges rather than as undue influence.
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What are "suspicious circumstances"?
Where the circumstances surrounding a will's creation arouse the court's suspicion (typically because a substantial beneficiary was involved in drafting or arranging the will, the testator was frail or isolated, the will departs sharply from prior estate planning, or the testator had no independent legal advice), the person seeking probate must dispel the suspicion by showing the testator knew and approved of the contents.
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Can a will be challenged after probate is granted?
Yes, but the pathway is harder. Before probate, a caveat can be lodged to prevent the grant. After probate is made, the challenger must apply to revoke the grant, and administration may already be underway. The safe practice is to act before the grant.
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How long do I have to challenge a will's validity?
There is no strict statutory time limit equivalent to family provision. But once probate has been granted, the challenge pathway narrows sharply. Practical time management: act within days rather than weeks once concerns emerge.
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What is a caveat to probate?
A caveat is a document lodged with the probate registry that prevents a grant from being made without first hearing the caveator. It preserves the challenger's position while the underlying investigation continues. Caveats have a limited life (typically six months in most jurisdictions) and can be renewed or removed on application.
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What happens if a will is set aside?
The invalid will has no effect. The estate is administered under the previous valid will (if any) or, where no earlier will exists, under the state's intestacy rules. Beneficiaries under the invalid will lose their entitlement; beneficiaries under the earlier will or intestacy step into place.
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Do I need medical evidence to challenge testamentary capacity?
Almost always. The contemporary medical records of the deceased around the time the will was made are the most important evidence. GP notes, hospital records, specialist reports (particularly geriatrician, neurologist, psychiatrist), and any capacity assessments contemporaneous with the will are usually decisive. In contested matters, a retrospective capacity assessment by an expert is also common.
Thinking on challenging the validity of a will
Aptum publishes regularly on the questions that decide challenging the validity of a will matters.
The Aptum will validity team
Michael Buscema
Michael Buscema spent 11 years with the ATO and Commonwealth Treasury, including as acting Assistant Commissioner, before joining Aptum as a practice lead. He acts for private wealthy groups and families in complex, high-value disputes, and has negotiated settlement and security arrangements totalling over $1 billion.
Estate disputes over substantial asset pools are rarely just about the will — trust structures, superannuation and tax consequences run through them, and Michael brings senior experience on exactly those fronts.
Nigel Evans
Nigel Evans, Aptum's Managing Director and Co-Founder, leads Aptum's estates practice. Before founding Aptum, Nigel spent 11 years at the commercial Victorian Bar, where much of his practice touched on trust structures, fiduciary breach and equitable remedies. He is listed in Best Lawyers in Australia for Commercial Litigation (2026) and recognised by Doyle's Guide as a Leading Commercial Litigation and Dispute Resolution Lawyer.
Offices
Aptum services estates clients across Australia from three offices.
Get clarity on your will validity concern
If a will has been read and something about how it came about does not sit right, timing matters. A caveat lodged before probate is granted is far cleaner than an application to revoke probate afterwards. If you have serious concerns about a will's validity, book the value conversation this week.
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