Who can challenge a Will?

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

Preventing a challenge to a Will

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 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
• is grossly unfair, excluding the deceased’s dependents or someone who should have been provided for; or
• is a forgery.

In general, a belief that a Will is unfair will not be sufficient grounds to challenge its validity. A challenger 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 challenging a Will?

It’s important to act quickly, as delay may jeopardise your claim.

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

However, 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, the court can set aside the time limit.

When can a Will be challenged?

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 a Will be challenged after a grant of probate?

Its easier to challenge a Will before probate has been granted, but it is possible to do so after that. 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.

Who can challenge 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 named in the Will (the beneficiary); 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 challenge 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 must satisfy the Court that adequate provisions were not made for their maintenance, education or advancement in life.

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

What will the Court look at?

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 s/he was doing?
• Was a claimant partially or fully dependant on the deceased excluded from a Will?

Will I have to go to Court?

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

Sometimes, however, going to Court cannot be avoided.

How much does it cost?

The total cost of a contested Will claim depends on how long it takes to resolve a claim.

What if my challenge succeeds?

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’ (i.e. having died without a Will) mandate how an estate is to be divided. Provision is made for certain relatives and dependents, regardless of the wishes of the deceased.

Here to Help

Contact us for free no-obligation phone advice if you are considering challenging a Will.