Treated unfairly in a Will or an intestate estate?

Have you been unfairly left out of the Will of a loved one or received nothing from an estate due to the rules of intestacy?

Have you received less than you feel you are entitled to in a Will?

If you are an eligible person, there are significant assets in the estate, and you have the requisite financial need, you may be entitled to claim against the estate.

We can represent you in filing an application to the Supreme Court of NSW for greater share of the estate.

Challenging a Will in NSW

When can a Will be challenged?

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

Reasons for contesting a Will include the belief that:

  • the Will is not legally binding;
  • the Will has been tampered with;
  • a more recent Will exists;
  • the Will does not make proper provision for claimant;
  • the testator lacked capacity;
  • 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 testator’s free will is destroyed.

Preventing Challenges to Wills

Ways the testator can reduce the likelihood of challenge succeeding include:

  • telling beneficiaries what each is to receive in the Will;
  • Clear and precise language in a Will, such as accurately describing gifts and expressing clear reasons for giving gifts;
  • Evidence that the Will was not tampered with.

Grounds for challenging a Will

Grounds for an objection or challenge to the validity of a Will include that the Will:

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

A challenge to a Will may claim that the testator was not acting freely when they made their Will because they:

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

Is there a time limit on challenging a Will?

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

A challenge should be made within 12 months from the date of death. If the date of death is uncertain, the court will determine a reasonable date.

In certain situations you may still be able to make a claim. The court may agree to set aside the time limit if the challenger says they:

  • did not know the person had died, or
  • received threats.

When can a Will be challenged?

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.

A loved-one cannot challenge a Will simply because they do not like its contents, or they are aggrieved. A belief that a Will is unfair will generally be insufficient grounds to challenge its validity. The grounds for challenging a Will must be recognised by law.

Can a Will be challenged after Probate has been granted?

Whilst it’s easier to challenge a will before Probate is granted, it is possible to mount a challenge after a grant. You would have to satisfy the Court as to:

  • your reasons for not challenging the Will earlier; and
  • the validity of the grounds for your challenge.

Who can challenge the validity of a Will?

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

  • a person/s 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 contest a Will because they believe they have been insufficiently provided for are:

  • Spouses;
  • Former Spouses;
  • De Facto partners [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 and adopted children. Step children may contest the Will if they were dependent on the testator;
  • Grandchildren who were at least partially dependent on the deceased;
  • Members of the deceased’s household who were at least partially dependent on the deceased (including those in ‘close personal relationships’ with the deceased);
  • Parents, if dependent on the deceased.

A claimant must satisfy the Court that the Will does not make adequate provision for their maintenance, education or advancement in life.

What does the Court consider 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 dependent 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. However, if this fails, going to Court cannot be avoided.

How much does it cost to challenge a Will?

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

What will I get 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 never existed. None of the provisions will be applied and the estate will be distributed according to the second-to-last Will.

If no other Will exists or can be found, the estate will be divided in accordance with the intestacy rules in the Act (i.e. the deceased died without having made a Will). In that event, provision is made for certain relatives and dependents, regardless of the wishes of the deceased.

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