Challenging a Will

In New South Wales, a person with an interest in a deceased estate can challenge the will in the Supreme Court if they believe it is not legally valid. A challenge to a will may be made because it is suspected there has been fraud or forgery, because the testator was subjected to undue influence, or because the will-maker lacked testamentary capacity. This page deals with challenging a will in New South Wales.

Who can challenge a will?

A person can challenge a will if they are:

1. A beneficiary named in a previous will by the deceased;
2. A beneficiary named in the current will;
3. A person who would be entitled to the estate if the person had died intestate.

Process of challenging a will in NSW

A person can challenge the validity of a will either before or after there has been a grant of probate. If you wish to challenge the validity of a will, the first step is to find out whether there has been a grant of probate. You can do this by calling the Supreme Court and asking if there has been a grant of probate.

You may also wish to file a probate caveat, which will prevent the court from issuing a grant of probate. If a probate caveat is filed, the court will not make a grant of probate until the parties agree that the caveat can be removed or the court makes an order.

If you cannot reach an agreement with the other party regarding the validity of the will and the removal of the caveat, one of the parties must commence court proceedings so that a judge can determine whether the will is valid.

Court proceedings are usually commenced by the person who is arguing that the will is valid (the claimant), by filing a Statement of Claim, setting out the reasons why the will is allegedly valid. The other party (the defendant) then files a defence to the claim, setting out the reasons why they say that the will is invalid.

Both parties should then prepare evidence in the form of affidavits to support their case.

Time limits for challenging a will

There is no time limit for challenging a will. Probate can be challenged after it has been granted. However, if you are thinking of challenging a will, you should act sooner rather than later.

If you intend on challenging a will after probate has been granted, you will have a greater onus of convincing the court to revoke the grant of probate and to explain why you failed to act before probate was granted.

Grounds for challenging a will

In New South Wales, a person can challenge a will on a number of grounds.

Lack of testamentary capacity

If a person lacks the mental capacity to understand the significance and implications of a will when they execute it, the will is invalid.

The test for capacity is set out in the case Banks v Goodfellow (1870) 5QB 549 at 565. In summary, there are four things that must be fulfilled at the time a person signs his or her Will. The person who makes the will must:

• Understand that he or she is making a will and what that means;
• Recall the nature and extent of their property in general;
• Understand and appreciate any moral obligations they may have towards family – for instance, understand who may have claims on their estate; and
• Not be affected by a disorder of the mind or a delusion to the extent that the will made would not have been made if the will maker was of sound mind.

Fraud

A will is invalid if there is fraud involved in its execution. This could mean that the person who signed the will was not the testator or that a later will was made but has been destroyed or hidden.

A person challenging a will on the basis of fraud will need to convince the court that fraud was committed by a beneficiary for the purpose of receiving a benefit under the will and that it had a direct effect on the making of the will.

Undue influence

If you can establish that the person who made the will was under undue influence, a court may declare the will to be invalid. Undue influence means that the testator was coerced to make their will in a particular way. It may consist of a psychological or physical threat.

For a challenge on this basis to succeed, the court must be presented with evidence that the testator was subjected to coercion. Persuasion is not enough to establish undue influence.

Forgery

A will is not valid if it is a forgery. This means that the will was made by someone else or signed by someone else. A person challenging a will on this ground will need to adduce evidence of how the will was forged.

The testator did not know and approve the will’s contents

When a person makes a will, they are presumed to have known and approved of its contents.

To challenge a will on the basis that the testator did not know and approve its contents, you need evidence that the person who made the will did not know and approve the contents of their document.

Cost of challenging a will

The judge in a contested estate matter has a discretion as to who pays the costs of the proceedings.

Generally, the successful party is entitled to an order that the other party must pay their costs. The losing party may be ordered to pay the successful party’s ordinary costs. Ordinary costs are not always the entire amount of costs incurred.

At times there may be an argument about the amount of ordinary costs that should be paid. If there is an dispute about ordinary costs, an application can be made to the court to have costs assessed.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.