Challenging a Will in NSW

When can a Will be challenged?

A Will can be challenged by anyone with an interest or relationship with the Will-maker (known as the ‘testator’).

Reasons for challenging a will include:

  • Will not legally binding;
  • belief that a Will has been tampered with;
  • belief of existence of a more recent Will;
  • belief that Will does not make proper provision for claimant;
  • belief that the testator lacked capacity;
  • belief that the testator was tricked or unduly influenced into making the Will.

Undue influence is the use of persuasion, duress, pressure, force, coercion or fraudulent practices to the extent that the free Will of the testator is destroyed.

Preventing Challenges to Wills

If the testator tells loved ones what each is to receive in their Will they know what to expect which helps to prevent challenges.

Courts rarely interfere with the testator’s wishes if the language in a Will is clear and precise. Gifts in a Will being well-defined, expressing clear reasons for giving gifts, and having evidence showing that the Will was not tampered with reduces the chances of a successful challenge.

What is meant by Contesting or Challenging a Will?

A contest to a Will is a formal, legal objection or challenge to the validity of a Will, raised by an interested party, on the basis that:

  • The Will does not accurately reflect the testator’s true intentions; or
  • The will is grossly unfair, excluding the deceased’s dependents or someone who should have been provided for; or
  • the Will is a forgery.

In general, a belief fact that a Will is unfair will not be sufficient grounds to challenge its validity. Contests to Wills may claim that the testator was not acting freely when they made their Will because they:

  • were acting under undue influence; or
  • were the victim of fraud; or
  • lacked the necessary capacity (known as ‘testamentary capacity’); or
  • lacked the mental faculties necessary to write a valid Will.

Is There a Time Limit on Contesting a Will?

If the testator passed away after 1 March 2009, you have 12 months from the date of death to raise a Will dispute claim.

If the testator passed away before 1 March 2009, you had 18 months from the date of death to raise a claim. All is not lost however, as in certain situations you may still be able to make a claim. If you did not know the person had died, or you received threats then the court can set aside the time limit. It’s very important to act quickly, as delay may jeopardise your claim.

If the date of death is uncertain, the court will determine a reasonable date.

When can a Will be Contested?

You cannot challenge a will simply because you do not like its contents, or because you are aggrieved. A legal challenge to a will has to proceed on a ground recognised by law.

A testator’s the right to distribute their estate as they see fit is subject to legislation for the protection of those for whom the deceased had a ‘moral responsibility’ to provide. A Will can be challenged when a loved-one feels that the testator failed to meet this responsibility.

Can I Challenge a Will After Probate Has Been Granted?

While it’s easier to challenge a will before probate is granted, it is possible to raise a challenge after the grant of probate. In this case, you would have to explain to the court why the challenge was not made earlier and satisfy them as to the validity of the grounds for your challenge.

Can I Challenge the Validity of a Will?

Under the Succession Act 2006 (NSW), the two general classes of person have ‘standing’ (the necessary legal entitlement) to challenge a Will are:

  • A Person/s named in the Will (the beneficiary/beneficiaries); and
  • Anyone who would stand to inherit if the Will was invalid. That is, persons who have been ‘disinherited’ or excluded from inheriting.

People entitled to contest a Will because they believe they have not been sufficiently provided for are:

  • Spouses
  • Former Spouses
  • De Facto’ partners – De facto partners are partners who were living with the deceased when they passed away, in a manner similar to that of husband and wife (including same-sex relationships).
  • Children, including adult children, those under 18 and adopted children. Step children may contest the will if they were dependent on the testator.
  • Grandchildren, provided they were at least partially dependent on the deceased;
  • Members of the deceased’s household who were wholly or partly dependent on the deceased. This includes those in ‘close personal relationships’ with the deceased;
  • Parents. If dependant on the deceased, a parent may be able to contest a will.

A claimant on a Will must satisfy the Court that adequate provisions were not made for their maintenance, education or advancement in life.

Can I Challenge Part of a Will?

A Will can be challenged in whole or in part. An entire Will can be challenged, or only the part to which the claimant takes exception.

What Will the Court Look at When a Will is Challenged?

The criteria the Court uses to assess claimants on a Will include:

  • Is the Will ‘grossly unfair’?
  • Should a claimant left out of a Will been provided for?
  • Are the testator’s intentions clear?
  • Did the testator have the mental capacity to understand what he/she was doing?
  • Was a claimant partially or fully dependant on the deceased excluded from a Will?

Will I Have to Go to Court to Contest a Will?

Where possible, Will disputes are resolved through a settlement agreement or mediation. This prevents the matter going to Court which reduces legal costs, brings earlier resolution and preserves family relationships.

Sometimes, however, going to Court cannot be avoided.

How Much Does it Cost to Contest a Will?

The total cost of a contested Will claim depends on how long it takes to resolve a claim: either by negotiation or mediation before or after the dispute reaches Court; or after a long drawn out application to the Supreme Court. Each case is different.

What Will I Get If My Challenge Is Successful?

If you successfully contest the validity of a Will, the court will ‘set aside’ the Will. This has the legal effect of making it as though the will has never existed. None of the provisions will be applied and the estate will be distributed according to the second-to-last will, if one exists. If no other will exists or can be found, the laws of ‘intestate succession’ apply (Intestacy is the state of having died without a will). Those laws mandate how an estate is to be divided. Provision is made for certain relatives and dependants, regardless of the wishes of the deceased.

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