If you believe that the will maker (testator) was not of sound mind when they made their will, you may have grounds to challenge the validity of the will on the basis of lack of testamentary capacity. Here are the steps you can take:
- Understand Testamentary Capacity: Testamentary capacity refers to the testator’s legal and mental ability to make or alter a valid will. The testator must understand the nature of making a will, the extent of their assets, and the claims of those who might expect to benefit from the will.
- Gather Evidence: Collect evidence that supports your claim that the testator lacked capacity. This may include medical records, witness statements, or expert opinions from medical professionals who can attest to the testator’s mental state at the time the will was made.
- Seek Legal Advice: Consult with a lawyer who specialises in wills and estates to assess the strength of your case. They can provide guidance on the legal standards for testamentary capacity and help you understand the process of contesting the will.
- File a Challenge: If you decide to proceed, you will need to file a challenge in the Supreme Court of Victoria. The court will consider the evidence and determine whether the testator had the requisite capacity when the will was executed.
- Consider Mediation: Before going to trial, consider mediation as a way to resolve the dispute. Mediation can be a less adversarial and more cost-effective way to reach a settlement.
- Court Proceedings: If mediation is unsuccessful, the case may proceed to a court hearing. The court will evaluate the evidence and make a determination regarding the validity of the will.
Challenging a will on the grounds of lack of testamentary capacity can be complex, and it is essential to have strong evidence and legal support to succeed.
If you have a particular will or deceased estate matter you wish to discuss, contact our experienced team today on (03) 9481 2000 or info@tauruslaywers.com.au