Challenging a will in NSW refers to the legal process of disputing the validity of a Will. If you have an interest in an estate and you believe that a Will is not legally valid, you may have ground to challenge the Will in the Supreme Court of NSW. Here is a list of reasons why a Will may be challenged:


Lack of Capacity

The testator (the person making the will) must have the required mental capacity to understand the implications of their will at the time it was created.
If it can be demonstrated that the testator lacked this requisite mental capacity, the will may be deemed invalid. To determine whether the testator had the required capacity, the Court will take the following into consideration:
– Whether the testator understood what he or she is doing, that is, making a will and
understand the effect of their will;
– Know the extent of their estate;
– Be aware of and understand those who they would otherwise be expected to provide for;
– Be free from a disorder or delusion of the mind.

Knowledge and Approval

“Knowledge and Approval” relates to when a person makes a will, that they must understand they are making a Will, and they must approve of its contents.
There is a presumption that when a person signs a Will, that they know and approved its content.
It is important to note that this presumption can be shifted if there are circumstances which create doubt as to whether a person knew and approved the contents of their Will.
If you wish to challenge a Will on this basis, you will need evidence to prove that the testator did not know and approve the contents of their Will.

Fraud, Forgery and Suspicious Circumstances

If there is evidence demonstrating that a testator did not sign their will, or that the Will was made by someone else, then the Will is invalid and grounds can be sought for relief.
This legal avenue aims to safeguard the integrity of the deceased person’s wishes and prevent fraudulent activities from influencing the distribution of their assets.

Undue Influence

To prove undue influence, it is necessary to prove that there was actual coercion that overcomes the Will of the testator.

Not Executed or Properly Executed

For a will to be considered valid in NSW, it must adhere to specific criteria, including being in writing and signed by the testator in the presence of two witnesses.
In order to challenge a Will on this basis, you will need evidence to show 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.

Challenging a will is a complex legal process that involves specific steps and considerations.
Although every situation is different, to give you an idea of the process, we provide you with a summary of what you might expect based on our experience in similar matters.

The Process of Challenging a Will

The process begins with a consultation with one of our experienced estate lawyers who specialises in Will Disputes. This initial consultation helps assess the merits of the case and determine if you may have valid grounds for challenging the Will.

Our team will work with you to gather all relevant information about the Will, the deceased person’s estate, and the circumstances surrounding the making of the Will. It will be important to firstly ascertain whether a Grant of Probate has been granted. Probate is a document issued by the Supreme Court of NSW confirming that a Will is valid, and it allows the executor to administer the estate. A Will can be challenged before or after a grant of probate, however, if possible, it is best to do so before. If Probate is not yet granted, you may wish to file a caveat on probate. This will prevent the Court from issuing a grant of probate until either the caveat is removed, or the Court makes an order as to the validity of the Will in question.

An August and Claire lawyer will help you identify the specific legal grounds you may have to challenge the will. Common grounds include lack of testamentary capacity, undue influence, fraud, forgery, and failure to meet formal requirements.
Court proceedings relating to challenging a Will are commenced by Statement of Claim. Once proceedings are commenced, each party will need to prepare and file evidence in support of their claim.

Challenging a will in NSW can be emotionally draining and legally complex. It’s crucial to work closely with an experienced estate lawyer who can guide you through the process, ensure that
your rights are protected, and help you navigate the legal complexities involved in challenging a Will.

Reach out to our friendly team today to discuss your claim.