A Guide to Challenging a Will in NSW
On What Grounds Can You Challenge a Will in NSW
The facts and circumstances of a case will determine whether a will can be challenged and on what grounds.
Examples of where a person may be able to challenge a will include where the will has not been executed in accordance with the formal requirements under the Succession Act 2006 (NSW), or where it can be shown that the will was prepared under undue influence or in suspicious circumstances, or where the testator had dementia or Alzheimer’s at the time of making their will.
Grounds For Challenging a Will in NSW
There are many grounds upon which a will may be challenged and the grounds upon which a will may be challenged will depend on the facts and circumstances of each case.
The Will-Maker Lacked Testamentary Capacity
For a will to be valid, the person making or changing their will (known as the ‘testator’) must have testamentary capacity at the time of the will’s creation or change.
To have testamentary capacity the testator must have a sound mind, memory, and understanding of what they are doing when making their will.
If the court is not satisfied that the testator had testamentary capacity in respect of a particular will, the court may ‘pass over’ the doubtful will and grant probate for an earlier (valid) will, or if there is no earlier valid will, determine that the testator died without a valid will (referred to as dying ‘intestate’) and grant letters of administration to the estate’s administrator.
You Suspect Undue Influence
Undue influence may arise where a person makes a will against their wishes, in other words, a will made under ‘coercion.’
A will is made under coercion if the will that was created was not the will the person would have made absent the coercion. Coercion may arise where a child or grandchild places considerable pressure (either verbal or through their conduct and/or actions) on their parent or grandparent which coerces the parent or grandparent into leaving them a share, or larger share, of the estate.
The fact that the parent or grandparent acquiesces and eventually agrees to make the will in those terms, does not cure the preceding undue influence.
The onus of proving undue influence rests on those who allege it and it is often very difficult to establish. A person who alleges undue influence and is ultimately unsuccessful may be ordered to pay one or more of the other parties costs.
The Will Does Not Reflect the Will-Maker’s Intentions
There are many reasons why a person may question whether a will reflects the will-maker’s intentions.
Questions may arise where the wording of the will creates uncertainty in its interpretation (also referred to as ‘construction’). In some cases the parties may be able to negotiate an agreed construction, in other cases, the court may be required to determine the correct construction.
Questions may also arise where a testator’s intentions change over time and one or more earlier beneficiaries are left out of a subsequent will. The disappointed beneficiary may suspect that the subsequent will does not reflect the will-maker’s intentions in an attempt to restore themselves as a beneficiary. In some cases, the person may have an actionable case, but in others, they may not.
The Will is a Forgery
If a will has come into existence through fraud or forgery, the will is invalid and the court will not grant probate for an invalid will.
If the court finds the deceased’s last will to be invalid, the court may ‘pass over’ the invalid will and instead grant probate for an earlier valid will, or if there is no earlier valid will, determine that the deceased died without a valid will (referred to as dying ‘intestate’) and grant letters of administration to the estate’s administrator.
There is Fraud Involved
Fraud typically involves the creation of a will that is the product of false or misleading facts or circumstances that mislead the testator.
To prove fraud, a party must establish the beneficiaries were party to the deceit, the deceit was practiced to secure the gift, and the gifts must be made a consequence of the deceit.
Fraud is more egregious than undue influence.
Who may be Eligible to Challenge a Will
A person’s eligibility to challenge a will depends on the grounds upon which the person is seeking to challenge the will and their relationship to the deceased.
Potential claimants may include:
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- A family member or close friend of the deceased whose will has not been properly executed.
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- A family member or close friend of the deceased whose will is unclear in its interpretation.
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- A family member or close friend of the deceased whose will was prepared by a person who was not a lawyer.
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- A person who is named as a beneficiary in an earlier will who is left out of a subsequent will.
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- A person who is named as a beneficiary in an earlier will who has had their benefit reduced in a subsequent will.
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- A person who is named as a beneficiary in an earlier will who suspects a subsequent will has been prepared under undue influence or coercion.
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- A person who is named as a beneficiary in an earlier will who suspects a subsequent will has been prepared under suspicious circumstances.
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- A family member or close friend of the deceased who died with dementia or Alzheimer’s.
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- A family member or close friend of the deceased who was in aged care, respite care or palliative care when they prepared their will.
The eligibility and success of a claim will depend on the facts and circumstances of each case and is not limited to the above categories. If you fall into any of the above categories or have a specific inheritance question, we recommend that you obtain advice from an expert wills and estate lawyer.
Challenging a Will: Our Process
Book a meeting to discuss your situation
The first step is to book a meeting with one of our inheritance lawyers. This is an opportunity to tell us about your legal issue and your objectives. Our lawyers will ask further questions to obtain a detailed understanding of the matter to determine whether we can assist and the estimated costs.
If we can assist we will send you a Costs Agreement and our Terms and Conditions.
Negotiate with the Executor and Beneficiaries
Most will and estate disputes can be resolved through negotiations and/or mediation.
The negotiation process usually involves your lawyer writing to the executor (and any other parties) setting out your position and legal reasoning. If you have already received an offer your lawyer can assist you to respond to the offer and/or make a counter-offer.
If a settlement can be reached, the parties may choose to formalise the agreement through court orders or a private agreement (i.e. Deed of Family Arrangement), depending on the circumstances.
Mediating Outside of Court
Mediation is an alternative dispute resolution process whereby the parties meet with an independent, impartial and neutral third party mediator who assists the parties with the negotiations and helps facilitate settlement of the issues. It is recommend that each party be legally represented at mediation.
If an agreement is reached, the parties may or may not require further involvement of the court, depending on the terms of the settlement.
If a settlement can be reached, the parties may choose to formalise the agreement through court orders or a private agreement (i.e. Deed of Family Arrangement), depending on the circumstances.
If the mediation is unsuccessful, the matter may continue in court.
Take the matter to court
If the dispute is not able to be resolved through negotiations and/or mediation the matter may require a court hearing to determine the matter.
Probate Caveat
A person with an interest in a deceased estate can file a document called a caveat which prevents the Court from issuing a grant in relation to the estate.
A caveat can only be made before a court grants probate so it is important to consider whether a caveat is appropriate to protect a client’s interest in an estate as early as possible.
Challenge a Will Case Study: Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2002] NSWSC 1279
This case involved a daughter’s successful challenge of a will made by her mother on her deathbed under a cocktail of anaesthetics and analgesics; found to be invalid for lack of capacity, knowledge and approval.
In 2019, Apolonia Czerwaniw was admitted to hospital for treatment of a chronic ulcer in her right leg. Treatment proved temporarily successful but Apolonia returned to hospital in 2020. On 9 January 2020, Apolonia’s condition deteriorated and over the course of the afternoon she suffered rapid atrial fibrillation (1:00pm) requiring a “code blue” request for advanced life-support, and from 2:00pm to 5:30pm she received several anaesthetic agents while further procedures were performed. At 6:26pm she gave consent to perform emergency open thrombectomy.
At 7:30pm, as she was about to undergo surgery Apolonia told her doctors “I want to change my will. I want my son to have the house if anything were to happen to me” and refused to have the surgery performed unless this was changed. The treating doctors drew up a form of will, which she signed and they witnessed, leaving her house to her son and leaving nothing to her daughter.
After a detailed examination of the effect of anaesthetic drugs on Apolonia’s cognitive ability, the Court set aside the last will for lack of capacity, knowledge and approval.
How Empower Wills and Estate Lawyers Can Help You With Challenging a Will in NSW
Our inheritance lawyers are experts in will and estate disputes who dedicate themselves to achieving the best results for each client.
Our legal services are accessible to most through our flexible fee structures including sliding fee scales, payment plans, pensioner discounts, and in some cases conditional or “no win no fee” agreements.
Do you want to challenge the validity of a will?
If you have suspicions about the construction of a will, contact us now on [email protected] or 1300 414 844 for a confidential and obligation-free initial consultation.
Want to learn more?
Read about why it’s important to have a valid and up-to-date will here.
Read more about challenging a will in NSW here.
Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. If you have a question or legal issue we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts and circumstances.
Frequently Asked Questions
Who pays the legal fees if I win my case?
If a person wishes to challenge a will and retains a lawyer to represent them, that person will be required to fund their own legal representation and the cost will depend on the the lawyer’s fees and the terms of the costs agreement between the client and lawyer. The lawyer may require payment for work performed on an ongoing basis or may offer a ‘no win no fee’ arrangement where the client is not required to pay the costs of the lawyer (but will still be required to pay the cost of a barrister and disbursements) unless and until a successful outcome is achieved.
In some circumstances, if you are successful, the court may make an order (known as a ‘costs order’) that the estate or the losing party reimburse you for some of your legal costs. Cost orders in succession claims can be complex and require legal advice.
Other things that need to be established when challenging a claim?
What a person needs to establish their claim will depend on the facts and circumstances of each claim.
Where a person suspects undue influence, the person alleging the undue influence will have the onus of establishing that the will was a product of coercion and this may require evidence from friends or relatives.
In other cases, the mere raising of a claim may require the executor to disprove the claim.
For example, where a person suspects suspicious circumstances, they should raise this with the executor. Depending on the facts and circumstances, the executor may be required to prove that there were no suspicious circumstances.
Where a person suspects a lack of testamentary capacity, they should raise this with the executor. Depending on the facts and circumstances, the executor may be required to prove the testator had testamentary capacity.
In these cases, either party may rely on evidence from friends and family members relating to the circumstances surrounding the preparation of the will, and/or medical evidence.
What does it mean to prove that the deceased was domiciled in NSW?
A person’s domicile is the country that a person treats as their permanent home or lives in or has a connection with. The location of a person’s domicile is an important aspect of wills and estate law as it can affect how and where the assets of the deceased are distributed.
What happens to jointly owned assets?
The assets that a person owns when they die are the assets that fall within their estate. Assets may be owned with other people, as either tenants in common or joint tenants.
The risk to the asset will depend on the nature of the claim.
Those assets held as tenants in common will generally be at risk as the share held by the deceased at the date of their death will be available to satisfy court orders.
Those assets held as joint tenants will pass to the surviving tenant under the right of survivorship. These assets will generally not be available to meet a court order except whether the asset has been designated ‘notional estate’ or where the particular asset has been the subject of a legal or equitable claim outside the purview of the succession legislation.
How long can a will in NSW be challenged?
The facts and circumstances of the case will determine what time frames apply.
If you suspect that the will was not properly executed, or there were suspicious circumstances surrounding the preparation of the will, or the testator did not have testamentary capacity when he or she made the will, we recommend that you contact and speak to a lawyer as soon as possible to ensure the circumstances can be explored as expeditiously as possible.
Can I challenge notional estate assets?
The Succession Act 2006 (NSW) contains provisions relating to ‘notional estates’ which can operate to widen the pool of assets that may be made available to satisfy a family provision order.
In some cases, a person who challenges a will may, by virtue of the size and nature of a deceased’s estate, find themselves attacking one particular asset.
An experienced wills and estates lawyer will be best placed to provide advice in relation to ‘notional estates’.
