My parents have made a Will leaving everything to charity! My sister and I would like to Contest this Will. Are we able to Contest the Will before they die?
You are able to contest your parents Will before they die. This is because under the Succession Act, the Court has the power to alter or revoke a Will if the person who made the Will is alive and lacks testamentary capacity.
What is testamentary capacity?
For a Will to be valid it is necessary for the person making the Will to be of sound mind, memory and understanding. The person making the Will must:
- Understand the nature and effect of the Will;
- Know the nature and extent of their property;
- Comprehend and appreciate the claims on their Estate which they should give effect to (such as you and your sister having a claim on your parents Estate); and
- Are not affected by delusions that influence the disposal of their assets at the time they make their Will.
What information is required for a Court application to alter a Will?
In support on application to alter a Will the Court requires the following information:
- A written statement of the general nature of the application and the reasons for making it;
- Evidence of the lack of testamentary capacity of the person who made the Will;
- A reasonable estimate of the size of the Estate of the person who made the Will;
- A draft of the proposed altered Will;
- Any evidence of the wishes of the person who made the Will;
- Any evidence of the likelihood of the person regaining testamentary capacity; and
- All other facts that are relevant to the application.
When will the Court alter a Will?
The Court will only alter a Will if it is satisfied that:
- There is reason to believe that the person who made the Will is incapable of making a Will; and
- The proposed alteration is reasonably likely to be one that the person would have made had they had testamentary capacity.
Could I make a family provision claim?
An alternative to applying to the Court to alter your parents Will’s while they are still alive, is the eligibility of your sister and yourself to make a family provision claim against your parents Estates. Family provision claims need to be lodged within 12 months of the date of death of the deceased and allow the Court to consider whether your parents have adequately provided for you and your sister in their Will’s.
Graeme Heckenberg is an expert specialist in Wills and Estates and does not offer No Win No Fee arrangements. However, he does provide expert advice on contesting Wills and an assessment of your case. On consultation all court fees, hourly rates and any other matters are fully disclosed to you so that you are able to decide whether you wish to commence contesting a Will knowing the facts and your chances of winning.
If you need advice on contesting a Will in NSW, you need to seek legal advice from an Expert Wills & Estates Lawyer. You need to speak to the expert lawyers at Sydney Wills Lawyers on how to successfully contest a Will. We specialise in Wills & Estate Law and pride ourselves on our open and honest communication with clients.
Call today for an appointment on 9221 2779.