Worrall Moss Martin News

Issue 26,  March 2021

Who can challenge my Will?

An important consideration for anyone planning to make a Will, or anyone hoping to challenge a Will, is “who is entitled to challenge a Will?”

The answer to this question depends on what type of challenge a person is seeking to make.   The answer also varies from jurisdiction to jurisdiction.

There are a number of ways of challenging a person’s Will after they die, but the most common claims can be separated into two categories:
  • claims that challenge the validity of the Will itself, and seek to have the Will set aside; and
  • testator’s family maintenance claims (or “family provision claims”) seeking provision (or further provision) from the estate.
Will Validity Challenges:   The validity of a Will can be challenged in circumstances where a Will does not meet certain formal requirements, where it can be shown that a Will was made without sufficient mental capacity, where the person making the Will did not know and approve its contents, or where the Will was made as a result of fraud or undue influence.

To be eligible to challenge the validity of a Will, a person must have a “sufficient interest”, meaning that they have a right or claim against the estate that would be affected if the Will was admitted to Probate.

Therefore, a person will only have the ability to challenge a Will if the person:
  • is a beneficiary named in the Will under challenge, or in a prior Will of the deceased; or
  • would be entitled to a share of the deceased’s estate if it passed in accordance with the laws of intestacy (which apply where a person dies without a valid Will).
This means that determining who is eligible to challenge the validity of a Will always requires careful considerations of the particular circumstances of the deceased, including a review of their previous Will or Wills (if any), and an assessment as to how the person’s estate would have been distributed under the legislation if they had died without any Will at all.

Testator’s Family Maintenance Claims:   Even where a person dies with a valid Will, this does not necessarily mean that its terms will be upheld.   All Australian states and territories have legislation that allows the Court to override the terms of a valid Will to make provision (or further provision) for an eligible applicant in certain circumstances.

In Tasmania, to be eligible to make a testator’s family maintenance claim, a person must be:
  • the spouse of the deceased person (including de facto spouses if certain additional conditions are met);
  • the child of the deceased person (including biological and formally adopted children, and step children if certain additional conditions are met);
  • the parent of the deceased person, if the deceased person dies without leaving a spouse or any children; or
  • a divorced spouse (or separated de facto spouse) who at the date of the death of the deceased person was receiving or entitled to receive maintenance.
Siblings are not eligible claimants in Tasmania, in any circumstances.  

The only Australian jurisdiction where siblings are expressly eligible to make a claim for provision is South Australia, and only in circumstances where the sibling cared for, or contributed to the maintenance of, the deceased.   Siblings may also be able to make a claim for provision in Queensland, if they meet the definition of a “dependent” of the deceased, which includes a requirement that they are under the age of 18.

Every Australian jurisdiction other than Tasmania and South Australia allows claims by grandchildren in certain circumstances.   The specific requirements vary from jurisdiction to jurisdiction, but generally whether a grandchild is eligible will depend on whether the grandchild was dependent on the deceased at the time of their death.  

How Can We Help?   Worrall Moss Martin Lawyers has specialist skills and experience Estate Litigation matters, and can help you with any enquiries.

Please contact Kate Moss, Robert Meredith and Eve Hickey if you need expert advice and guidance about challenging a Will.
How do my Executors sell my property after I die?
Selling property can be complicated, which is why most people engage a solicitor or conveyancer to assist with the process.   Executors selling property from an estate adds an extra layer of complexity to the process.  

What will my Executors need to be able to sell my property after I die?   Executors will need the following documents in order to complete a sale of an estate property:
  • the original Certificate of Title.   If, after extensive searches, the Executors are unable to locate the original Certificate of Title, it will be necessary to complete a Lost Title Application to the Land Titles Office, and obtain a new Certificate of Title.   However, this is a last resort, as it is onerous and increases the costs of administering the estate;     
  • a Grant of Probate.   While it is possible for Executors to enter into a contract for sale prior to obtaining a Grant of Probate, the contract should be made subject to Probate being granted, meaning that the sale cannot be completed until after Probate has been granted; and
  • a specially drafted contract.   While not a formal requirement, it can be advantageous for Executors to obtain a contract for sale specifically drafted for that purpose, rather than the standard form contract for sale.   A specially drafted contract can provide additional protection to the Executors.  
What if I have not repaid my mortgage before I die?  If a property bought with the assistance of a loan is still held by a person when they die, one of three scenarios will usually exist:
  • the loan has not been repaid – in this case, the loan account will remain active, a balance will be owing on the account, and the mortgage will still be registered on Title;
  • the loan has been repaid, but the mortgage has not been discharged – where the loan is repaid, the financial institution will usually close the loan account, but may continue to hold the original Certificate of Title, until the necessary formal steps are taken to discharge the mortgage; or
  • the loan has been repaid and the mortgage discharged – this means that not only has the financial institution been repaid, and the loan account closed, but the necessary formal steps have been taken so that there is no longer a mortgage registered on Title.
It is usually necessary to formally discharge the mortgage (so that it is no longer registered on the Title) before a property can be sold.   Steps must be taken to repay the loan and discharge the mortgage before settlement occurs.

Will my Executors be able to sell my property undervalue?   Executors have a duty to maximise the value of the estate.   As such Executors should try to obtain the best price possible for the sale of an estate property.   Of course, the “best price possible” is influenced by many factors, including:
  • the location of the estate property;
  • the state of condition and repair of the estate property;
  • the scale and cost of any works that could be completed to improve the state of condition and repair (and therefore the potential sale price) of the estate property, and the time it will take to complete those works;
  • the timing of the sale of the estate property – for example, are there compelling reasons to expedite or delay a sale?   Are there extensive personal and chattel items of the deceased that will take some time to clear?   Is it advantageous to arrange for a sale as soon as practicable (for example, to minimise ongoing expense to the estate); and
  • general market forces, including the state of real estate industry, and the state of the economy in general.
All of these factors will be considered when determining if the Executors achieved the “best price possible”.    However, Executors must make decisions about what is the “best price possible” in real time, without the benefit of hindsight.   In order to assist the Executors to make those decisions, and protect themselves, they may wish to obtain:
  • a valuation report prepared by a professional valuer.   A valuation report can provide a baseline for what constitutes an acceptable sale price, and can later be used to satisfy the beneficiaries or any interested third parties that the Executors achieved an appropriate sale price; and/or
  • appraisals from one or more real estate agents.   An appraisal differs from a professional valuation in that an appraisal will usually outline the real estate agent’s expected market price noting current market conditions, proposed marketing strategy, and proposed commission upon a successful sale.  
Obtaining a valuation and/or an appraisal can assist the Executors to determine how they wish to market the property for sale, and choose an appropriate real estate agent to assist them to sell the property.

If I appoint multiple Executors, who makes decisions about the sale?   Executors are jointly and severally responsible for their decisions and actions.   This means that a decision made by one Executor is binding on the other(s), and an Executor will not avoid personal liability simply because a decision was made by a co-Executor or co-Executors.  
  • Where there are multiple Executors, one Executor may enter into an agency agreement with a real estate agent (providing the terms on which the agent is engaged to sell a property), and bind their co-Executors by that agreement.  
  • All Executors must however be a party to, and sign, the Contract for Sale (and all necessary documents to complete the conveyance) of an estate property, evidencing their approval of the arrangements contained within the contract, including the sale price and the conditions of the sale.  
How can we help?   Worrall Moss Martin Lawyers has specialist skills and experience in Estate Administration and Property Law, and can help you with any enquiries.

Please contact our lawyers, Kate Moss, David Bailey or Megan Bird if you, or your client, need expert advice and guidance about the sale of an estate property.
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This newsletter contains material for general educational purposes and is not designed to be advice to any particular person about their own affairs as it does not take into account the circumstances of the reader as an individual.  It is recommended that appropriate professional advice be obtained by each reader so that reliance can be taken upon that advice.

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