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Will Disputes

Contesting a Will

Whilst dealing with the loss of a loved one is a deeply painful experience, discovering that the assets of an estate will not be distributed as you may have expected or the deceased person’s wishes have not been carried out, can make this and even more traumatic and complex experience.

If you are concerned about the validity or distribution of assets in a will, Curwen Walker Lawyers can help you challenge it in accordance with Australian law. Grounds for challenging a will can include a lack of testamentary capacity, failure to follow legal requirements for drafting and signing, undue influence, or unfair distribution of assets. Our experienced estate litigation lawyers can guide you through the legal process and help you understand the potential risks and costs involved.

Common disputes about wills can include removing executors or trustees, missing beneficiaries, disputes over the administration, and estate administration disputes. Additionally, the Testator's Family Maintenance process can allow someone who had a moral duty to be provided for to challenge a will if they can prove it. Our lawyers can help you understand the facts involved, including the contents of the will and the relationships between the parties involved, to determine the best course of action.

At Curwen Walker Lawyers, we are committed to achieving a successful outcome for our clients. It is important to seek legal advice and carefully consider potential costs and risks before deciding to proceed with a challenge. Contact us today to discuss your concerns and receive expert guidance from our experienced estate litigation team.

If a person believes they were unfairly treated in a Will, they can start a legal process called "testator's family maintenance" in the Supreme Court. To be eligible to make a claim, the person must be closely related to the deceased. This includes a spouse, domestic partner, parent, child, stepchild, or someone treated as a child by the Will-maker. Registered carers, members of the household, or grandchildren may also be eligible if they can show dependence on the Will-maker.

The court considers several factors when determining a claim, such as the Will and the circumstances of its creation, whether the deceased had a "moral duty" to provide for the applicant, and the relationship between the applicant and the deceased. The court also takes into account the impact of a change on other beneficiaries named in the Will. The applicant must file the claim within six months of probate or letters of administration being granted. While the process may be emotionally challenging, it can have significant long-term benefits for the applicant.


Challenging a Will

The Process of Challenging a Will in Victoria

In Australia, challenging a will refers to contesting the validity or distribution of assets in a will. The process for challenging a will typically involves the following steps:

  • 1

    Grounds for challenging a will:

    The first step in challenging a will is to determine whether there are grounds for doing so. The most common grounds include lack of testamentary capacity, undue influence, fraud, and forgery.
  • 2

    Legal advice:

    If there are grounds for challenging a will, it is important to seek legal advice from an experienced estate litigation lawyer. The lawyer can advise on the best course of action and provide guidance on the legal process.
  • 3

    Notification of executor:

    The executor of the will must be notified of the challenge, and a copy of the summons or application must be provided to them.
  • 4

    Filing a claim:

    If the challenge proceeds, a formal claim is usually filed with the court, setting out the grounds for the challenge and the relief sought.
  • 5


    In some cases, mediation may be recommended as a way to resolve the dispute without going to court. This can be a quicker and less expensive option than litigation.
  • 6

    Court proceedings:

    If the dispute cannot be resolved through mediation, court proceedings may be necessary. Evidence will need to be presented to support the grounds for the challenge, and witnesses may need to be called to give testimony.
  • 7


    After hearing all the evidence, the court will make a judgement. If the challenge is successful, the will may be declared invalid or altered to reflect the court's decision. The court may also order that the estate be distributed differently.

It is important to note that challenging a will can be a complex and expensive process, and it is not always successful. It is therefore important to seek legal advice and carefully consider the potential risks and costs before deciding to proceed.

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