Can I Challenge or Contest a Will After Probate?

Can I Challenge or Contest a Will After Probate?

In New South Wales, it is possible to contest a Will or challenge a Will after probate has been granted, though the timing of a claim can impact the success and the likelihood of recovering assets.

It is important to understand the difference between contesting a Will or challenging a will when considering timing.

Someone who feels they have not been adequately provided for in the deceased’s will may consider contesting the Will. This is otherwise known as a ‘family provision claim.’

The first step to a family provision claim is a person establishing that they are an eligible person. The second step is establishing that they did not receive adequate provision for their proper maintenance, education and advancement in life. A family provision claim must be commenced within a specific timeframe which, in NSW, is 12 months from the deceased’s death. A family provision claim can be brought before or after probate has been granted, however, if the assets have already been distributed, it may reduce the likelihood of a successful outcome.

Where a person believes a Will is invalid because it was made when the deceased did not have testamentary capacity, or was made in suspicious circumstances, or because the Will was a product of undue influence or fraud, they may consider challenging the Will. If probate has not been granted, the person may consider lodging a probate caveat to prevent the court from granting probate for the suspicious Will. Depending on the circumstances, the matter may then proceed to court to allow the court to determine whether the Will is valid. These proceedings are often referred to as ‘contentious probate proceedings.’

Where a grant of probate is issued, it is still possible to challenge the validity of a Will, but the process will depend on several factors. If probate has been granted for the suspicious Will in common form, a person may challenge the suspicious Will and seek probate for an earlier Will, or administration. If the challenge is successful, the court may find the suspicious Will invalid, and grant probate in either common form or solemn form for an earlier Will.

Ultimately, although contesting a Will and challenging a Will are different processes, claimants will often share the same objective, that is, to gain a benefit or larger benefit from the Will-maker’s estate.

If you believe a Will is unfair or invalid, it is crucial to act quickly and seek expert legal advice to understand your rights and options having regard to the facts and circumstances of the particular case.

Understanding Probate: What Does Grant of Probate Mean?

A Grant of Probate is a legal document issued by the court that confirms the validity of a deceased person’s Will and authorises the executor to administer the estate. The administration process involves calling in the deceased’s assets, paying the estate’s liabilities, resolving any disputes against the estate, distributing specific gifts to the named beneficiaries, and distributing the balance of the estate to those who are entitled to it. A grant is made by applying to the court and is usually necessary to allow the legal personal representative to deal with and distribute the deceased’s assets, particularly if the deceased owned property or other significant assets.

Grounds to Challenging a Will After Probate in NSW

Challenging a Will after probate is granted is possible in New South Wales, but will depend on the form of probate granted (common form or solemn form) and the grounds upon which the person is seeking to impugn the Will. Here are several grounds upon which a Will may be challenged after the grant of probate has been issued:

Lack of testamentary capacity

Challenging the Will on the basis that the testator did not possess the required mental capacity to prepare a valid Will. The test for testamentary capacity is a legal test and not a medical test. Although the test is well established, it can be complicated to apply. By way of summary, in order for a Will to be valid, the deceased person must have had the capacity to understood the nature and effect of the Will; the capacity to understand the extent of property being disposed; the capacity to understand claims from potential beneficiaries; and an absence of any mental disorder or insane delusion bearing on the testator’s mental faculties so as to make their mind unequal to the task of preparing a Will. This might involve proving that the testator was suffering from dementia, Alzheimer’s disease, or other cognitive affliction or injury.

Undue influence or coercion

A person may consider challenging a Will on the ground of undue influence, where there is evidence that the Will does not reflect the true intentions of the testator because they were coerced, manipulated, or forced into making it by some other person. The person alleging undue influence will have the burden of proving the testator’s free will was actually overborne during the Will making process.

Fraud or forgery involved

A Will can also be challenged where there is evidence that it was the product of fraud. Examples or where fraud may arise include where the testator was misled during the Will-making process, was misled into signing a particular Will, where the testator’s signature is forged, or where the Will is amended after the testator’s death.

Breach of duty by the executor

If the executor has breached their duties or failed to administer the estate impartially and according to law, beneficiaries or interested parties may have grounds to apply to have the grant of probate revoked. The likelihood of a grant being revoked depends on many factors, including the type of grant (common form versus solemn form) and the alleged conduct.

Ambiguities or errors in the will

Legal challenges can arise when the language in the Will is unclear or ambiguous, leading to multiple interpretations about the distribution of assets or identity of beneficiaries. In these cases, the parties may require the intervention of the court of construction to interpret the meaning.

Changes in circumstances after grant of probate

If significant changes in circumstances occurs after a grant of probate, this may give rise to grounds to contest or challenge the Will.

Contesting or challenging a Will can be complex, and underscores the necessity of obtaining comprehensive advice from specialised lawyers like Empower Wills and Estate Lawyers in NSW.

Time Limit: When Is It Too Late to Contest?

In NSW, the time limit to contest a will is 12 months from the date of the deceased person’s death. This timeframe is crucial as it helps to ensure that estate matters are settled promptly and efficiently. This deadline can be extended by court order or consent of the parties. Other state and territories have different time frames.

The Supreme Court of NSW may only consider extending this period if the claimant can demonstrate and the court is satisfied that sufficient cause has been shown. Legal representation is highly advisable in such cases to navigate the complexities of probate law.

The Process to Contest a Will After Probate

Assessing your eligibility to contest

Before commencing court proceedings contesting a Will, it is crucial to determine whether you are eligible to contest the Will. The categories of ‘eligible person’ are set out in section 57 the Succession Act 2006 (NSW) and include the deceased’s spouse, de facto partner, children, former spouse, grandchildren or former members of the deceased’s household who were financially dependent on the deceased, or a person who had a close personal relationship with the deceased at the date of their death. Understanding whether you meet these criteria is the first step in the process.

Gathering necessary evidence

A family provision claim will need to be supported by robust evidence. This includes documentation that establishes your eligibility to bring a claim and that you have not received adequate provision from the estate having regard to the factors which the court may consider when making a claim as set out in section 60(2) of the Succession Act 2006 (NSW), such as: evidence that supports your relationship to the deceased, demonstrates your dependency, or indicates how the estate’s distribution does not reflect the deceased’s intentions. Evidence may come in various forms, and may include testimonial evidence, documentary evidence, and medical or expert evidence.

Legal representation and advice

In New South Wales, securing expert legal representation is crucial when contesting a will after probate. The experienced estate solicitors at Empower Wills and Estate Lawyers offer comprehensive guidance on the intricacies of NSW probate law and effective strategies for your claim. We ensure meticulous adherence to court deadlines and requirements, enhancing your chances for a successful outcome.

Mediation and alternative dispute resolution

Before proceeding to court, parties are often encouraged to engage in negotiations and mediation. This process can save time, reduce costs, and potentially lead to a resolution without the need for court intervention.

Filing the contest: Family Provision Claim

If the dispute is not able to be resolved through negotiations and mediation, court proceedings may be necessary. Court proceedings may be commenced by submitting an application to the Supreme Court of NSW, detailing your claim and the reasons for contesting the Will. You need to apply within 12 months of the date of death, although extensions can sometimes be granted by way of court order or consent of the parties.

Court proceedings

During court proceedings, each party presents their evidence and the court Will consider the outcome of the claim. Depending on the outcome, the unsuccessful party may lodge an appeal to a higher court. An unsuccessful party may wish to seek legal advice to understand the prospects of an appeal.

Role of the Executor After Probate

The executor plays a pivotal role when a Will is challenged or contested. As the legal representative of the deceased’s estate, the executor is responsible for defending the Will. If they are successful and they remain executor, their duties include:

  • Administering the Estate: The executor receives the estate’s assets, paying the estate’s debts and dealing with all administrative matters that arise during administration.
  • Distribute the Estate: This involves ensuring the estate is distributed according to the deceased’s wishes unless varied by agreement between the beneficiaries, or court order.
  • Communicating with Beneficiaries: Keeping all parties informed about the status of the estate and any legal actions being taken against the estate.
  • Legal Obligations: The executor must adhere to their fiduciary duties, acting in the best interests of both the estate and its beneficiaries.

Proper execution of these duties, especially in the face of a Will contest, often requires the executor to engage their own lawyer to act for them and navigate the complex issues that can arise.

What Happens If Assets Have Been Distributed?

Once assets from an estate have been distributed following the grant of probate or letters of administration, both challenging the Will and contesting the Will become more complex. If you discover that the estate has been distributed, but feel you have a rightful claim due to the fairness or validity of the Will, it is important to seek advice without delay. You may still be able to successfully contest the Will in some cases.

In such cases, the court may be able to issue orders to recover assets if it is proven that the distribution was contrary to the terms of the Will or otherwise unlawful. However, this often depends on the nature of the distribution and the current status of the distributed assets, so seeking timely legal advice is crucial. Unfortunately, in some cases, if the assets are gone — they are gone.

Legal Strategies for Challenging a Will After Probate

Challenging a Will after probate in NSW involves several strategic legal approaches, especially if probate has already been granted. Key strategies include challenging the validity of the Will on grounds such as improper execution, lack of testamentary capacity, or undue influence.

Thinking of Challenging or Contesting a Will? Reach Out to Empower Wills and Estate Lawyers for Expert Guidance Today

If you are considering challenging a Will, or believe you’re eligible and want to contest a Will and need legal advice, contact Empower Wills and Estate Lawyers.

Our experienced solicitors can provide expert legal guidance tailored to your specific circumstances. Our team understands the complexities involved in estate disputes and will work diligently to advocate on your behalf. Whether you need to contest a Will after probate or navigate the intricate aspects of estate planning, contact us today on 1300 414 844 to ensure your rights are protected and your case is presented effectively.

Liability limited by a scheme approved under Professional Standards Legislation. 

Disclaimer: the information in this article is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. 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, circumstances, needs and objectives.

Join Our FREE Monthly Newsletter to receive

10% Off Our Services*

* Secure discount now and use it later. Discount applies to solicitor fees only for the life of a matter up to a maximum of $5,000 benefit.

Sign up here