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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 qustion 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.

There are three main circumstances to consider when challenging a will. Before we discuss these, let's first understand some basic concepts about Wills.

Usually, the executor named in the Will must obtain a grant of probate from the Supreme Court which gives legal authority to deal with the deceased’s property. In order to obtain a grant, the executor must lodge the Will and certain other documents with the Court.

Once the Court Registrar is satisfied that the documents are in order and that the Will is formally valid, a grant of probate in common form is issued.

If there are contentious issues surrounding the Will, a grant of probate in solemn form will be issued. Contentious issues often arise where parties seek to challenge the Will using the methods outlined below. We are going to focus here on challenging Wills that receive grants in common form.

Of the three options for challenging a Will, one is available before the grant of probate, and two are available after.


Challenging a Will Before a Grant

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.


Challenging a Will After a Grant

Application to the Equity Division of the Supreme Court under the Family Provision Act 1982

The Family Provision Act 1982 specifically applies to people who have not been provided for in the relevant will. If the Court is satisfied that the person applying is an “eligible person”, it may order that provision out of the estate be made for that person’s maintenance, education or advancement in life.

An “eligible person” is defined in the Act as:

  • wife, husband or child of the child of the deceased, or former wife or husband;
  • grandchild who was wholly or partly dependent on the deceased, or who was a member of a household of which the deceased was a member;
  • person living in a domestic relationship with the deceased when they died.

The most recent amendment to these categories was the inclusion of the “person living in a domestic relationship” as an eligible person. This covers partners who do not fit within the formal definition of de facto couple to apply for provision under their partner’s will. However, not all partners can claim. For example, a girlfriend who lived separately from the deceased will not be able to claim, whereas a partner in a same-sex relationship who was living with the deceased (thus fulfilling the statutory definition of “domestic relationship” in the Property (Relationships) Act 1984) will be able to claim.

Despite this broadening, there are a number of requirements to be fulfilled in order to successfully challenge a will. The Family Provision Act 1982, the Property (Relationships) Act 1984, the Wills, Probate and Administration Act 1898 and the Supreme Court Rules 1970 all contain different parts of the legal jigsaw. The Court’s discretion to grant an application in these circumstances is not unrestricted. Therefore, care should be taken with these matters, and anyone considering making such an application should seek expert legal advice.

 

Application to the Probate Division of the Supreme Court for Revocation

Where a grant of probate in common form has been made, an application can be lodged with the Court to revoke that grant. The grounds for revocation are very limited, but include where the grant:

  • has been made to the wrong person (eg if a later will is discovered);
  • is irregular (eg one made despite a caveat being in force);
  • has become ineffective (eg where the executor has become mentally ill).

Any interested person can apply for a grant to be revoked, including anyone entitled to the estate if there was no will, any beneficiaries named in either the current or a previous will, and any executor named in the will. Revocation is not lightly granted and any person considering such a step should seek expert legal advice.

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.

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.

My sister wants my brother and myself to challenge my fathers Will as he has left his Estate in Trust to us all. He has stipulated that we are not able to access our inheritance until our 40th birthday. We feel that this is an extreme request and as adults we should be entitled to what has been bequeathed to us immediately. Do you think that we have a case?

Yes, you and your siblings have a case to Challenge your father’s Will under the Succession Act (NSW).

In a recent decision of the Western Australian Supreme Court, Mead v Lemon [2015], the youngest daughter of the deceased claimed she had not been left with adequate provision from the Estate of her father.

The value of the Estate was immense, having an estimate value of over $1 billion dollars.

Under the terms of the Will the youngest daughter had been left approximately $3 million dollars. This money was to be held in Trust until she reached 30 years of age. In addition, under the terms of the Trust, the daughter would not receive any of the money if any of the following occurred:

  • She became an alcoholic and/or whose capacity for rational behaviour in a competent and satisfactory manner has been impacted by alcohol;
  • She has at any time suffered a conviction relating to drugs, their use or any other illegal association therewith in any recognised form;
  • She is or has been in the opinion of the Trustees recently suspected or knowingly had any involvement or association whatsoever in relation to illegal drugs;
  • She has, in the opinion of the Trustees has become a drug addict or become involved with illegal drugs as a result of the legal use of drugs for any reason whatsoever;
  • She is, in the opinion of the Trustees a member of or in any other way involved with any religious body other than the Roman Catholic, Anglican, Presbyterian, Baptist, Uniting or other similar traditional faiths; or
  • She has been convicted of a felony at any time after the deceased’s death or within 10 years before the death of the deceased.

The Court held that the Will of the deceased did not make adequate provision for his youngest daughter. In reaching the decision the Court took into account the size of the deceased’s Estate as well as the manner in which the deceased had set up the Trust.

The Court found that adequate provision had not been made for the youngest daughter when considering the form in which the provision had been made including the conditions attached to the Trust and the age restriction on accessing the monies held in the Trust.

The Court ordered that the youngest daughter receive a lump sum of $25 million from the Estate and that the Estate pay her legal costs in challenging the Will.

My grandmother has died without leaving an up-to-date Will. She has left the bulk of her Estate to my father and his brother. My father was estranged from her and had not seen her for many years. I have lived and taken care of her for the past 5 years, but haven’t been left anything. Would I be able to Contest the amount left to my father?

Yes, you would be able to contest your grandmother’s Will.

Under the Succession Act certain groups of people are able to contest a Will and this type of Will contest is commonly referred to as a family provision claim.

The groups people able to contest a Will include spouses and de facto partners, ex spouses and ex de facto partners and children. There are two other groups of people eligible to contest a Will and you may fall into both of these groups. They are:

(a) A person who was, at any time, wholly or partly dependent on the deceased and who is a grandchild of the deceased or a member of the deceased’s household at any time; and

(b) A person who was living in a close personal relationship with the deceased at the time of their death. A close personal relationship means a relationship (other than a marriage or de facto relationship) between two adults, whether or not related by family, who are living together, with one or both of them providing domestic support and personal care to the other.

After confirming that you are an eligible person to make a claim on your grandmother’s Estate, the next step is to determine whether your grandmother has made adequate provision for your proper maintenance, education and advancement in her Will.

The Court will consider a number of matters when deciding whether your grandmother has made adequate provision for you in her Will including:

(a) The relationship between your grandmother and yourself;

(b) The nature and extent of any obligations or responsibilities owed to you by your grandmother;

(c) The size of your grandmother’s Estate;

(d) Your financial resources (including your earning capacity) and your financial needs (present and future) as well as the financial resources and financial needs of beneficiaries named in the Will (such as your father and uncle) or any other person who is making a claim on the Estate;

(e) If you are living with another person the financial circumstances of the person you are living with;

(f) Any physical, intellectual or mental disabilities that you may suffer from as well as any physical, intellectual or mental disabilities of the beneficiaries named in the Will or any other person making a claim on the Estate;

(g) Your age;

(h) Any contribution (financial or otherwise) you made to the improvement of your grandmother’s Estate or your grandmother’s welfare for which you have not received adequate consideration;

(i) Any provision made by your grandmother to you while she was alive;

(j) Any evidence of the testamentary intentions of your grandmother, including verbal statements while she was alive about how she wanted her Estate to be dealt distributed;

(k) Whether you were being maintained, wholly or partly, by your grandmother before her death;

(l) Whether any other person is liable to support you;

(m) Your character and your conduct before and after the death of your grandmother;

(n) The conduct of any other person before or after the death of your grandmother; and

(o) Any other matter the Court considers relevant.

As you can see from the above the Court will consider and take into account your father’s estrangement from your grandmother as well as your care for her over an extended period of time. You would have a strong case to contest your grandmother’s Will.

To successfully challenge a Will in NSW, will depend on the evidence that you can put before the Court, as to whether it will be a desired outcome! The stronger the evidence you can provide to the Court, the stronger your chances of success. This evidence should include evidence of your financial position, your relationship with the deceased and any assistance (financial or otherwise) that you provided to the deceased during their lifetime.

It is also important to remember that the Court will also take into account statements from witnesses, that detail comments made by the deceased while they were alive, about who they wanted to inherit from their Estate – this is commonly referred to as statements that showed the testamentary capacity of the deceased.

What is an Inheritance Dispute?

When people talk about an Inheritance Dispute, they are generally talking about a family provision claim under the New South Wales Succession Act. Under the Succession Act eligible people are able to make a family provision claim if they believe that they have been unfairly treated in a Will.

Eligible people to make a family provision claim include spouses, ex-spouses, de facto partners, children, grandchildren if they were dependent on the deceased and other people who a member of the deceased’s household and dependent on the deceased.

To be successful in a family provision claim it is necessary to show the Court that the deceased left you without adequate provision for your proper maintenance, education and advancement in life and that you have a financial need.

A family provision claim must be made within 12 months after the date of death of the deceased. However, it is best to act quickly if you intend to make a family provision claim, to ensure that the assets in the deceased Estate are not distributed to the beneficiaries before your claim is made.

What is a Contested Will?

A Contested Will generally refers to a challenge to the validity of the Will of the deceased. There are numerous reasons to Contest a Will including:

  • That the Will was not properly signed by the deceased in the presence of two witnesses and therefore is not a valid Will;
  • That the deceased did not have the required testamentary capacity at the time they made the Will. Testamentary capacity means that the deceased had a sound mind and memory at the time of making their Will. Testamentary capacity is often challenged when the deceased was suffering from dementia or another type of mental health issue;
  • That the deceased was subjected to undue influence by another person when they made their Will; and
  • That the Will is forged.

Contesting a Will requires evidence to be gathered from a variety of sources, including family members, friends, medical specialists, legal practitioners, witnesses to the signing of the Will and any other people who can provide evidence of the intention of the deceased in making their Will.

What is the difference between an Inheritance Dispute and a Contested Will?

The main difference between an Inheritance Dispute and a Contested Will is that, an Inheritance Dispute does not challenge whether the Will is a valid Will. Rather, an Inheritance Dispute challenges whether the deceased made adequate provision, for the eligible people in their lives.

In a recent case we were retained to advise a son whose father died suddenly leaving no will. Many years before, the father and mother had divorced in acrimonious circumstances and the son had lived with his mother. The son had intermittent contact with his father including living with him after leaving high school. The father had not remarried although had established a long-term relationship with a woman, who the son described as a girlfriend.

The son was not advised of his father’s death and not told of the funeral. The girlfriend made an application for Letters of Administration to be granted to her and claimed to be the de facto spouse of the deceased. If this claim was accepted by the Supreme Court she would be entitled to receive the same share in the deceased’s estate as if she was his wife.

Our client was adamant that the girlfriend was not his father’s de facto spouse and instructed us that both his father and the girlfriend had and lived in their own homes as single people, but went out together. The fact that his father had not married the girlfriend, or lived with her in the same house or made a will naming her as a beneficiary was further proof to our client that his father did not regard the girlfriend as a de facto spouse.

The contest in this disputed estate was between the only son and the alleged de facto spouse. If the son could disprove the girlfriends claim to be a de facto then he would inherit all the estate and the girlfriend would receive nothing. If however the claim of de facto spouse was upheld the deceased’s estate would be divided in accordance with established rules regarding people who die intestate. We agreed to act for the son on the basis that we would not charge any fees until the conclusion of the court case.

The Wills Probate and Administration Act rules provide that if a person does not leave a will, that is, dies intestate, the property is to pass to the deceased’s next of kin in the following order of statutory priority:

  1. Spouse and no children - all to spouse.
  2. Spouse and children -
  3.  
    • if estate is less than the statutory amount ($150,000 but subject to legislative amendment from time to time) – the whole to the surviving spouse.
    • if estate exceeds the statutory amount – spouse receives the first $150,000, all household effects and one half of the balance of the estate. The balance of the estate goes to the children. The spouse has the option of taking the matrimonial home in full or partial satisfaction of their interest.
  4. Children but no spouse – to children equally.
  5. No spouse & no children – to the parents of the deceased equally.
  6. No spouse and no children, no parents – the first to fall in the class of persons as follows -
  7.  
    • Brothers & sisters.
    • Half-brothers & half-sisters.
    • Grandparents.
    • Uncles and aunts resulting from the remarriage of the deceased grandparents.
  8. If no one else - the State of New South Wales.

What is often overlooked is that if the deceased’s children or brothers and sisters otherwise entitled have themselves died but have left children then those children will take equally the share their parent would have received.

In this case the girlfriend’s claim was challenged and our firm retained one of Sydney’s leading Senior Counsel to represent the son despite our client being of modest means, as we negotiated with the barrister to wait for his fees until the funds of the estate were made available.

The issue for the Court to determine was what were the deceased’s living arrangements having regard to the evidence and affidavits filed by each party. Each case turns on its own facts and evidence. The Courts have held that it is possible to have a bona fide domestic relationship as a de facto spouse without living together. Although living together is a usual and expected feature of a de facto relationship it is not determinative of the issue with the Court looking to the whole matrix of facts and circumstances of the particular situation to determine what does and does not constitute a de facto spouse.

However, in this case, consent orders were able to be filed as a result of the evidence we prepared, including affidavits from our client and from people who had attended the deceased’s home and observed the relationship between him and the girlfriend. This resulted in the estate saving considerable legal costs, as the case did not go to a full hearing.

For a will to be valid, the person making the will must have testamentary capacity. When making a will, the will maker must be of a sound mind, understand the effect of making a will and they must know what assets they have. The Courts can set aside a will if it can be established that the will was not a true reflection of the deceased’s intentions.

In the case of The Estate of Ella Minnie Lillian Bush v NSW Trustee & Guardian [2016] NSWSC 1611, there was a dispute over whether the deceased had testamentary capacity at the time she created her last 3 wills.

On 22 November 2011, 12 November 2012 and 21 February 2013, the deceased made the 3 disputed wills. It was in these wills that she left her entire estate to the Cancer Council of NSW and Wee Waa Anglican Church, although there were different executors in each of the wills. Her previous wills had divided her estate equally to her closest surviving relatives.

Shortly after she created her will on June 2011, the deceased began to show symptoms of diminished cognitive function. One incident was where the deceased failed to recognise her granddaughter.

Another incident was that, she had appointed her brother Cecil as her executor in November 2011, the problem was, that he had been dead for 9 years! The deceased also seemed unaware of the money she had in her estate, even though she had deposited a total of $700,000, at various times to her ANZ bank account.

The Court was satisfied that the deceased had testamentary capacity at the time she made her last 3 wills. The Court found that the deceased’s decision to leave her estate to these 2 charities was, reasonable given her circumstances; she was a regular member of the Wee Waa Anglican Church and her husband and son had died of cancer.

The Court accepted the suggestion that the deceased had mistaken Cecil for her other brother, who was alive at the time, and that she understood it was necessary to change the executors. The Court also accepted that the deceased had been coy about her financial situation, and had only told her enduring guardian of her true financial position.

Although it may appear harsh, or unreasonable to exclude a particular beneficiary, it is does not show a lack of testamentary capacity.


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