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Contesting a Will


There are two main reasons a Will might be contested.

The most common reason for a Will dispute is on the basis of a Family Provision Claim. For this reason we discuss Family Provision Claims in a section all to itself. To find out everything you need to know about filing a Family Provision Application, click here.

The second main reason for a Will dispute is when someone contests that the Will is invalid. We start by discussing who can challenge a Will in these circumstances and then consider what makes a Will invalid.


Who Can Contest a Will?

The laws governing Wills and disputes about Wills differ from State to State. The information we provide on this page relates to the legislation in NSW.

Contested Will disputes in NSW are resolved through the Supreme Court.

After a person dies, you may contest the validity of a Will if you are an “interested person”. You are considered to be an “interested person” if you fit any of the following descriptions:

  1. You were named in a previous Will as an Executor.
  2. You were named in a previous Will as a beneficiary.
  3. You were named in a final Will as a beneficiary.

According to the law in NSW, you have the grounds to contest a Will in the following circumstances:

Is the Will in question the last Will made by the deceased?

If you believe that the Will in question was not the last Will made by the deceased, you will need to find the last Will made and prove it meets all of the requirements under Section 6 of the Succession Act 2006 for it to be considered valid.

Was the Will executed in accordance with the requirements of the Succession Act 2006?

For a Will to be considered valid, the law requires that the Will is to be signed and witnessed in a certain way. Should these requirements not be conducted properly, the court may consider the Will to be invalid and the estate will be treated as if there was no Will (intestate).

The formal requirements for proper execution of a Will in NSW are listed in Section 6 of the Succession Act 2006. They include:

  • A Will must be in writing, either typed or handwritten.
  •  

    Writing is defined as any mode representing or reproducing words in visible form.

  • A Will must be signed by the testator (the person making the Will).
  •  

    It can also be signed by someone else in the presence of and at the direction of the testator. In these circumstances, there should be independent evidence of this.

  • The signature must be made or acknowledged by the testator in the presence of at least two adult witnesses present at the same time.
  •  

    Witnesses must be over 18 years of age and of sound mind. They should be independent, that is, they should not be beneficiaries or spouses of beneficiaries under the Will.

  • At least two of the witnesses must attest (witness) and sign the Will in the presence of the testator but not necessarily in the presence of each other.
  •  

    A person who cannot see and attest that a testator has signed a document may not act as a witness to a Will.

  • The signature of the testator or of the person signing in the presence and at the direction of the testator must be made with the intention of executing the Will.
  •  

    It is not essential that the signature be at the foot of the Will.

    It’s important to consider that these requirements are not a complete list of clauses that may make a Will invalid. There are other circumstances and situations that may need to be taken into consideration.

    For these reasons, it is always recommended to consult a lawyer who specialises in Wills and Estates. This will help reduce any risk of a Will dispute and the costs associated with resolving a contested Will.

Did the testator have the testamentary capacity to make the Will?

To make a valid Will, the law requires a person to have a certain mental capacity and level of understanding about what they are doing when they are making their Will. This is referred to as testamentary capacity.

In New South Wales, those under the age of 18 years are also considered to lack the necessary capacity to make a valid Will.

In order to make a valid Will in NSW, a person must be 18 years of age, be of sound mind and capable of understanding what they are doing. The person making the Will (Testator) must be capable of understanding the value and nature of their estate and be able to identify the beneficiaries who would ordinarily inherit the estate.

Mental illness, or any other disease that impairs mental function, does not automatically mean that the testator lacks the required mental capacity. Proving a lack of mental capacity in court requires medical records or the testimony of those who observed the testator at the time of making the Will.

Where a lack of testamentary capacity is proven and the Will at issue is not a valid Will, a previous Will needs to be relied on. If there is no previous Will, the deceased estate will to be distributed in accordance with the Rules of Intestacy.

In order to successfully challenge a will on the basis of lack of testamentary capacity, you need to prove:

  • that the testator suffered from senility or mental illness, or a medical condition which impaired their mental capacity (this may only have been temporary in effect).
  • that the testator was under the influence of drugs or alcohol at the time of writing their will.

That the testator was either ill or very elderly when they made their Will is not sufficient grounds by itself to argue a lack of testamentary capacity.

You must also satisfy the court that the testator did not, at the time they made the Will, understand:

  • the true value and extent of their estate.
  • who they were expected to provide for and the consequences of including or excluding eligible persons from their Will.
  • how their estate and property was to be distributed.
  • that they were making a Will, or the effect of making a Will

Was the Will altered after it was originally signed?

If you believe a Will was altered after it was originally signed, the burden of proof rests with you to prove that was the case. This is not always an easy process. It may require evidence from witnesses to the Will and handwriting experts to prove a case on this basis.

Was there any undue influence involved when the Will was written?

If a person uses trickery, pressure, force or fear to assist a testator when making a WIll, then undue influence is considered to have been used. Undue influence is most often perpetrated by those who stand to benefit from the Will being made.

The court will only rule on grounds of undue influence where it is satisfied the testator was coerced when making the Will and that the Will was contrary to their real intentions. Flattery and persuasion is not usually enough to be considered undue influence.

To prove undue influence can be difficult without the full details, supporting evidence and the witnesses who were present at the time the Will was made. However, the burden of proof shifts to the person accused of undue influence and they need to show they did not use trickery, pressure, force or fear to produce a Will to their benefit.

If you want to contest a Will in the state of NSW, you are required to file an application with the Supreme Court no later than 12 months from the date of death. If it is unclear whether you are eligible to contest a Will or you are uncertain whether you have grounds to contest a Will, you would be advised to seek legal advice before commencing an application. An application is considered “made” on the day it is filed in the Supreme Court Registry.

Sometime the date of death is uncertain. In these cases the court may determine a date or time of death that is judged to be reasonable.

If you fail to file an application in time, there may be some cases where an out of time application can be made. You will need to show the court that you have sufficient cause to file a late application. Keep in mind these circumstances are usually an exception, time limits on Will challenges are strictly applied.

The reason time limits are strictly enforced on Will challenges is to allow for the deceased estate to be administered quickly and efficiently. An estate can not be fully administered until all disputes are resolved. It is important for an executor to finalise their duties and distribute the estate once the time limit has been reached. It also provides any beneficiaries the peace of mind knowing there will be no challenges to their interests.

If the last day of the 12 month limit falls on a non business day, you can also seek an extension until the first business day.

Once you are satisfied that you have grounds to contest an invalid Will and that you are within the required time limit, begin by providing relevant information as it relates to the Will itself. Where possible, you should include the following information:

  • Your contact details.
  • Your relationship to the deceased.
  • The date of death of the deceased.
  • Details about the executor or executrix.
  • Details about any of the beneficiaries - their names, their relationship to the deceased, their financial circumstances (if known).
  • A copy of the Will itself or details about where a copy can be obtained.
  • Details about Probate - has it been granted and if so, the date it was granted.
  • Contact details for lawyers of the estate (if there any).

In order for the lawyers to consider your situation appropriately, you will need to provide some information to support your claims that the Will is invalid. If you haven't already, read through the information on this page that discusses the different reasons a Will might be considered invalid. Then, you will need to provide evidence that proves your claim. This evidence might include:

  • A copy of a more recent Will.
  • Names of witnesses who can testify to specific details of undue influence.
  • Verified proof from a handwriting expert.
  • Medical reports that show evidence of mental illness or a medical condition.

There may be other evidence you need to provide depending on why you believe the Will is invalid. In this case you might want to discuss this with your legal representative.

Lastly, it will help your legal representative to understand how you consider yourself an "interested person", that is, what makes you eligible to contest the Will. Were you:

  1. Named in a previous Will as an Executor.
  2. Named in a previous Will as a beneficiary.
  3. Named in a final Will as a beneficiary.

Provide a brief summary about how you might be considered an "interested person" and therefore eligible to contest the Will. If possible, obtain a copy of the Will in which you were named.

Once you have prepared all the information mentioned in this article, speak with a specialist Will dispute lawyer who can advise you on the process and your chances of a favourable outcome. There are many different circumstances to consider when disputing a Will and without expert advice you may be wasting your time and money. Read our section on Will Dispute Lawyers to help you work out how to get the best result.

Caveats

If a grant in common form has not yet been made, a caveat (which is a warning entered in the books of the Court Registry) can be lodged with the court. This prevents the Court from issuing a grant of probate without first notifying the person who lodged the caveat. Each type of caveat is appropriate to different circumstances.

  1. Caveats seeking proof of the Will in solemn form.
  2.  

    These can only challenge the will on the issue of due execution, no other issue can be raised. They are used where there are concerns about forgery or doubts about whether the will was properly signed and sealed.

  3. General caveats.
  4.  

    Used where doubts arise about the testator’s capacity to make the will, the identity of the intended beneficiary, the testator’s understanding of the content of the will or its effect, whether the deceased acted under duress or undue influence in making the will, or if there are concerns about forgery.

  5. Caveats forbidding grants in respect of informal documents.
  6.  

    In some circumstances, the Court has the power to treat informal documents as wills even though they may not have been properly signed or witnessed. This type of caveat prevents a court from making such a grant without first hearing from the caveator regarding whether the informal documents should be granted validity.

Heckenberg Lawyers are able to help you if you are living overseas and would like to contest a Will.

Our expert Wills and Estates Lawyers understand the difficulties that arise when you live overseas and would like to contest a Will in Australia.

We have successfully helped people living overseas who wish to contest a Will in Australia and need to have confidence in their legal team. Our expert Wills and Estates lawyers provide precise and succinct advice on contesting a Will in Australia. In addition, our expert Wills & Estates lawyers handle all the necessary investigations to support a challenge to the Will including:

  • Speaking to witnesses and obtaining statements from them in support of the challenge;
  • Collating additional supporting evidence in support of the challenge;
  • Drafting the required legal documents; and
  • All the other varied details and acts that need to be done to successfully contest a Will in Australia.

If you are living overseas and would like to contest a Will in Australia, you need to be aware that time frames apply to making an application to contest a Will. The best way to ensure that you comply with these time limits is, to engage experienced Australian solicitors, who will ensure that your application to contest a Will does not fail because it is out of time.

If you are considering contesting a Will in Australia whilst living overseas, the first thing that you need to do is speak, or e-mail, our expert Wills and Estates lawyers. After considering the circumstances surrounding the Will they will be able to provide you with the following information in plain english:

  • Whether you are able to contest the Will on family provision grounds, undue influence, fraud or testamentary capacity;
  • What type of evidence is required to be successful in contesting a Will under the various grounds. For example specialist medical reports for contesting a Will made by someone suffering dementia or handwriting expert reports for contesting a Will that has been forged;
  • What type of monetary entitlement you may receive from the Estate in the event the challenge to the Will is successful; and
  • Whether you would be required to pay legal fees or whether such fees would be paid out of the Estate.

If you are living overseas and wish to contest a Will in Australia then you need an expert Wills & Estates lawyer in Australia to act on your behalf. Our expert Wills & Estate Lawyers have the experience you need to make your claim successful.

See our Will Dispute Lawyer & Contesting Wills page for more information on the Wills & Estates services we provide or contact us for advice specific to your situation.

Should an application questioning the validity of a Will proceed to hearing, the court will need to answer the following questions:

  1. Is the Will in question the last Will made by the deceased?
  2. Was the Will executed in accordance with the requirements of the Succession Act 2006? For example:
  3.  
    • Was the Will in writing and signed by either the testator or someone else in the presence of the testator and at the direction of the testator?
    • Was the signature acknowledged by the testator in the presence of two adult witnesses?
    • Did two or more witnesses sign the Will in the presence of the testator?
    • Was the testator signature (or the person signing in the presence and at the direction of the testator) made with the intention of executing a Will?
  4. Is the Will up to date or has the testator's legal rights changed. Factors that could alter the legal rights of the testator include:
  5.  
    • Divorce
    • Separation
    • Marriage
    • A significant change in their financial situation
    • The death of beneficiaries or a spouse
    • Having children or grandchildren
  6. Did the testator have the testamentary capacity to make the Will?
  7. Was the Will altered after it was originally signed?
  8. Was there any undue influence involved when the Will was written?

It can be difficult to prove a Will is invalid in the Supreme Court. It is therefore crucial that you have relevant, accurate and detailed evidence to present in court. The evidence must address the legal criteria you are challenging.


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