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CHALLENGING A WILL

Most people have heard of the term “contesting a will” which generally refers to claiming provision out of an estate, but that is not the only relief a person may seek from the court.

So, what does it mean to challenge a will and what options are available regarding a potentially invalid will?

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TYPES OF WILL CHALLENGES

Challenging a will relates to disputing the validity of a will and there are many ways in which that may be done. For example:

  • The testator did not have the required mental capacity to give instructions or sign their last will. The court may revoke a will of a deceased person if it is proved that they lacked capacity at the time of providing instructions and signing their last will.
  • The deceased did not understand the effect or approved of the contents of their will, otherwise known as “knowledge and approval”.
  • Fraud, forgery, or suspicious circumstances were involved, wherein, the testator’s will has not been signed by them or instructions were not directly taken from the testator.
  • Undue influence by a person or persons toward the testator to provide instructions to prepare a will in favour of a particular person or persons.
  • The will is not formally valid, in that, it has not been executed in accordance with part 2.1 of the Succession Act 2006 (NSW). However, the Court may still issue a grant on an invalid will if it is proven to be the deceased’s last testamentary intentions, in accordance with section 8 of the Succession Act 2006 (NSW).

LACK OF CAPACITY

A person cannot make a will if they do not have the required testamentary capacity at the time they provided instructions and signed their last will. To determine whether the testator had the required capacity, the testator must satisfy the following:

  • Understand what they are doing, that is, making a will and understand the effect of their will;
  • Know the extent of their estate including what their estate is made up of;
  • Be aware of and understand those who they would otherwise be expected to provide for; and
  • Be free from a disorder or delusion of the mind that would otherwise affect their decision as to the making of their will had they been of sound mind.

KNOWLEDGE & APPROVAL

When a person makes a will, they must understand they are making a will and they must also approve of its contents. There is a presumption that when a person signs a will that they knew and approved of its contents. However, that presumption can be shifted if there are circumstances which create doubt as to whether a person may not have known or approved of the contents of their will.

FRAUD, FORGERY OR SUSPICIOUS CIRCUMSTANCES

Where there is evidence to show the deceased did not sign their will, or the will was made by someone else, then a will is found to be invalid and grounds can be sought for relief as to same.

UNDUE INFLUENCE

To prove that a person was unduly influenced at the time they made their last will, then actual pressure amounting to coercion that overcomes the will of the testator must be proven. Coercion can be seen as emotional abuse, verbal abuse or physical violence.

WILL NOT EXECUTED OR PROPERLY EXECUTED

There may be circumstances where a person is trying to prove a will that is not signed or property executed.

To meet the guidelines of a properly executed will, a will must be in writing and signed by the testator in the presence of two witnesses. If a will is not signed correctly, then relief needs to be obtained under section 8 of the Succession Act 2006 (NSW).

If challenging the will on the basis that a will is not executed properly evidence needs to be provided that the document is not the deceased’s last will, the deceased did not intend for that document to be their last will and they did not intend to revoke their prior will as the case may be.

If you wish to discuss your options in relation to challenging a will, please contact our office for a free assessment on
(02) 4944 2008.

WHO CAN CHALLENGE A WILL?

Those that can challenge a will include:

  1. People that are set to receive an inheritance out of the current will of a deceased person;
  2. People that were to receive an inheritance in a prior will; or
  3. Those who would receive the estate or a share of the estate if the deceased had died without a will, otherwise referred to intestate.

TIME LIMITS FOR CHALLENGING A WILL

There is no legislated time limit for a will to be challenged, however, challenging a will should be done as soon as practicably possible.

The reason for this is because once Probate is granted on a will, it can be more difficult to revoke a grant, however, a will still can be challenged even after Probate is granted.

It is important to note that it becomes extremely difficult once the executor has administered the estate.

Please note challenging a will and contesting a will are different to one another. There are time limits that relate to contesting a will, that is, 12 months from the deceased’s date of death where the deceased’s assets are held in New South Wales.

    DOUBTS AS TO THE VALIDITY OF A WILL

    If there are doubts as to the validity of the will, it is best to get in contact with a solicitor as soon as possible.

    If probate has not been granted, a caveat may be filed with the registry of the Supreme Court of NSW so as to “stop” a grant being issued until either the caveat is removed by the caveator or the court makes an order for its removal.

    The caveator will also be provided with notice once an application for probate has been filed however the court will not grant probate so long as the caveat remains in force.

    Due consideration should be given prior to filing a caveat as there could be cost implications if a caveat is shown to be filed without basis.

      WHAT EVIDENCE IS NEEDED TO CHALLENGE A WILL?

      For a caveat to remain in force, the caveator must first show doubt as to the validity of the will. This can include their own observations, medical records of the deceased person and will preparation notes at the time the will was prepared.

      Throughout the will challenge proceedings, the court may, at the request of a party, issue subpoenas for production of documentary evidence as well as orders for expert evidence from specialists such as medical practitioners.

        WHAT HAPPENS IF A WILL CHALLENGE IS SUCCESSFUL?

        If a will challenge is successful, the court will make an order that probate be granted on the last valid will of the deceased, or, if no valid last will then a grant for letters of administration under on intestacy.

        It is therefore important you understand your standing and your entitlements if you were to be successful in a will challenge prior to challenging a will.

          WHAT CAN BE DONE WHILE THE TESTATOR IS STILL ALIVE?

          A will can only be challenged after the death of the testator. Prior to their death, if there are any concerns as to undue influence or lack of mental capacity of the testator, a person may contact the NSW Civil and Administrative Tribunal, Guardianship division to either seek appointment as financial manager and or orders as to guardianship or to review a current enduring Power of Attorney and/or Enduring Guardianship appointment.

          If there are concerns that a person has changed their will and it is likely that the will is not valid, collecting evidence while the person is still alive may assist your will challenge when the time comes.

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