Tuesday, May 24, 2016

Challenging a Will due to a Later Inconsistent Document

A recent post listed the five main ways in which a will can be challenged – see Ways to contest a will

One of the aspects listed was the ability to challenge a will due to a later inconsistent document.

As there is no central registry for wills (unlike, for example, the ASIC which records numerous key aspects in relation to every company registered in Australia), often confusion can arise as to what is in fact a person’s last will.

Generally, any potential confusion is resolved as part of the probate process. In other words, before a court grants probate of a testamentary document, it must be satisfied that the document is the last statement of the will maker’s intentions.

There can be scenarios however where, even after probate has been granted, evidence is discovered that shows either a later will was made, or alternatively, material was brought into existence that overrides certain aspects of what was otherwise the person’s last will.

Particularly as technology improves, the complexity surrounding what is in fact a person’s last testamentary document is likely to increase and reinforce the approach adopted by virtually every specialist lawyer in this area of a person only ever signing one copy of their intended will, and generally ensuring that the physical copy of any previous will is then destroyed.