Sydney’s Expert Law Practice in Challenging a Will

To challenge a will means to take issue with the validity of the will. There are many grounds on which a person may question the validity of a will.

Questions may arise in relation to the execution of the will itself or in relation to the circumstances surrounding the drafting or preparation of the will where for instance a family member, who takes an unusually large benefit under the will, was present when the deceased gave instructions to their lawyer, or more concerningly, where a family member prepared the will themselves.

Questions may also arise in relation to the deceased’s mental capacity (referred to as ‘testamentary capacity’) if the deceased had dementia, Alzheimer’s or another cognitive impairment or disease at the time of making their will.

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Who is Eligible To Challenge a Will in NSW

Who is eligible to challenge a will depends on the grounds upon which the person is seeking to challenge the will and their relationship to the deceased.

Beneficiaries named in a previous Will

A beneficiary named in a previous will may have grounds to challenge a subsequent will depending on the facts and circumstances of the case. 

Where a beneficiary named in a previous will takes issue with the circumstances surrounding the preparation or execution of a subsequent will, or believes the will-maker (known as the ‘testator’) lacked testamentary capacity when he or she made the subsequent will, the beneficiary may be able to challenge the subsequent will.

Where a beneficiary named in a previous will has their benefit reduced by a subsequent will, or is removed altogether, the beneficiary may be able to contest the will by bringing a ‘family provision claim’.

Beneficiaries named in the current Will

A beneficiary named in a current will whose benefit is reduced compared to an earlier will, may have grounds to challenge the subsequent will.

The beneficiary may have grounds to take issue with the ‘actual validity’ of the will if for instance there were suspicious circumstances surrounding the will’s preparation or issues regarding its execution. In more serious cases, there may be evidence of fraud.

The beneficiary may also have grounds to take issue with the ‘essential validity’ of the will if the will-maker had dementia or Alzheimer’s when the subsequent will was prepared.

Where a beneficiary named in a current will was expecting a larger benefit or believes they should have received more compared to other beneficiaries, the beneficiary may also be able to contest the will by bringing a ‘family provision claim’.

Persons who would be entitled to the estate if there was no Will

Where a person dies without a will or without a valid will, the person is said to have died ‘intestate’.

In NSW, if a person dies intestate, the deceased’s estate will be distributed in accordance with the laws of intestacy which are found in Chapter 4 of the Succession Act 2006 (NSW). The order of distribution is often complicated and a lawyer may be required to conduct enquiries with government agencies or other people, before the order of distribution can be confirmed.

Grounds For Challenging a Will

When a person challenges a will, they are bringing into question the validity of the will. There are many grounds on which the validity of a will may be brought into question.

The validity of a will may be brought into question if the will was not in its proper form or properly executed, or because of circumstances surrounding the preparation of the will where for instance a family member (who takes an unusually large benefit under the will) was present when the deceased gave instructions to their lawyer, or more concerningly, where a family member prepared the will themselves.

The validity of the will may also be brought into question on grounds of a lack of ‘testamentary capacity’ if the testator had dementia or Alzheimer’s at the time of making their will.

The Will Maker Lacked Testamentary

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. The case of Banks v Goodfellow (1870) LR 5 QB 549 has been the starting point in many cases for determining whether a testator had power to make a Will. In that case, Cockburn LCJ found that in order for a testator to have testamentary capacity the testator must:

(a) understand the nature of the act of will making and its effects;

(b) understand the extent of the property of which he or she is disposing in the document;

(c) comprehend and appreciate the claims to which he or she ought to give effect; and with a view to that object; and

(d) not be the subject of any disorder of the mind that shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

If the court is not satisfied that the testator had testamentary capacity in respect of a particular will, the court may ‘pass over’ that 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 or legal representative.

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 if the coercion had not existed. For example, coercion may arise where a child or grandchild places considerable pressure (either verbal or through conduct and/or actions) on their parent or grandparent so as to coerce 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 the other parties’ costs.

The Will Does Not Reflect the Will-Will-Maker’s Intentions

There are many reasons why a person may believe that a will does not reflect the testator’s intentions. 

Some circumstances may be well-founded for instance where the circumstances surrounding the preparation of the will, or its wording, create uncertainty regarding its interpretation (also referred to as its ‘construction’) and the testator’s real intentions. 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.

It is also common to encounter a testator whose intentions had changed over time and who has made one or more subsequent wills removing a previous beneficiary. The disappointed former beneficiary may allege that the last will does not reflect the will-maker’s intentions in an attempt to restore themselves as a beneficiary. In some cases, a disappointed previous beneficiary may have an actionable case, whereas in others, the disappointed previous beneficiary may have no action.

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 or legal representative.

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.

If a will appears to be duly executed by a testator who possessed testamentary capacity, the onus of proving fraud rests on those who allege it.

Fraud is more egregious than undue influence.

How Empower Wills and Estate Lawyers Can Help You Challenge a Will

Meet with you to assess the situation and likelihood of success

The first step is to meet with you to conduct an initial consultation 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. If we can assist we will provide an estimate of costs and issue a Costs Agreement and our Terms and Conditions.

Negotiate with the Executor on settlement

Most disputes over wills and estates can be resolved through negotiations.

Once we understand your objectives and desired outcome and have provided you with preliminary legal advice on the prospects and strength of your claim, we can commence negotiations.

The negotiation process usually involves your lawyer writing to the executor (and any other parties) setting out your position and your offer supported by legal reasoning. If you have already received an offer then we can assist you to respond.

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.

Take the matter to court

If the dispute is not able to be resolved through negotiations or mediation we can provide you with firm and fearless legal representation and dedicate ourselves to securing you the best possible outcome.

Have Us On Your Side

Experts in Our Specialised Area of Law

Our inheritance lawyers specialise in will and estate disputes and assist clients to claim or protect their interest in an estate through a combination of expert legal advice, representation, and strategy.

No Win, No Fee

In some cases we can offer clients a Conditional Costs Agreement, otherwise referred to as a “no win no fee” agreement. A “no win no fee” agreement means that a client will not have to pay any of our fees unless and until a successful outcome is achieved*.

*Whilst a client subject to a “no win no fee” agreement will not have to pay our fees until and unless they achieve a successful outcome, the client is still liable to pay disbursements and barrister’s fees throughout the course of the matter. Whether we can offer a “no win no fee” agreement will depend on the facts and circumstances of each case.

High Level of Client Care and Professionalism

We understand that the death of a family member or loved one can bring grief and heightened emotions. We acknowledge that inheritance claims can compound this grief and cause or deepen personal or family conflict.

We provide dedicated client care, tailored to each client’s particular circumstances, to support them through the process whilst working together to deliver the best results.

We understand that each client has different circumstances. Some clients require a lawyer to adopt a firm and fearless approach to negotiations and litigation, disregarding any existing relationships and seeking a “leave no prisoners” approach, while others prefer a more collaborative approach with a view to preserving or mending existing relations through mediation and family counselling. The approach that we adopt will depend on the client’s instructions and our clients have direct control over our approach.

Proven Track Record of Winning Cases

We consistently deliver successful results for our clients. Our client satisfaction is evident through our word of mouth referrals which are now our largest source of new clients.

Contact Empower Wills and Estate Lawyers today, to Get Expert Legal Advice

If you have an inheritance question and want an expert to protect your interests contact Empower Wills and Estate Lawyers now.

You can contact the experts at Empower Wills and Estate Lawyers by calling us on 1300 414 844.

We offer flexible fee structures tailored to out clients circumstances and in some circumstances offer “no win no fee” agreements.

Frequently Asked Questions

Examples of people who may have grounds to challenge a will include:

  1. a beneficiary named in a previous will whose benefit is reduced or removed in a subsequent will, and who believes the testator lacked testamentary capacity when he or she made the subsequent will.
  2. a beneficiary named in a previous will whose benefit is reduced or removed in a subsequent will, and who believes there were suspicious circumstances or fraud surrounding the creation of a subsequent will.

There are many categories of people who may have standing to challenge a will, including but not limited to beneficiaries (both former and current), family members, dependants, close friends, carers, those to whom the testator made promises regarding their estate. Whether a person has standing will depend on the facts and circumstances and requires a detailed consideration. 

Generally speaking, a person whose interests are not affected by the the granting of probate for the deceased’s last will, will not be eligible to challenge a will (i.e. a stranger, neighbour, colleague).

A person may challenge a will or contest a will. These are two distinctly different concepts and require a consideration of different factors.

To challenge a will typically involves a question of quality, that is, quality of the will itself, including circumstances surrounding its origin, execution, and its meaning (otherwise referred to as its ‘construction’).

To contest a will typically involves a question of quantum, that is, where a person wants to claim a larger share of an estate or defend a claim by another person. A claim of this nature is known as a ‘family provision claim’.

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 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, for instance, if you are ultimately 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.

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.

If the dispute can be resolved through negotiations and mediation the parties may be able to reach a resolution and settle the matter outside of court obviating the need for court proceedings. Whether a dispute can be resolved without court intervention will depend on the facts and circumstances of the case and factors including each party’s willingness to reach agreement.

In other cases, the facts and circumstances are such that the matter may need to proceed to court. In these cases, you should seek legal advice before commencing proceedings. In some circumstances, including where you commence court proceedings and are ultimately unsuccessful, or where you unreasonably refuse another parties offer to settle, the court may order that you pay one (or more) of the other parties’ costs. Costs in Will disputes can be significant and can often exceed $150,000 or more.

The parties in an action to a challenge to a will typically consists of the executor named in the deceased’s last will (who is seeking to prove and obtain a grant of probate for the deceased’s last will) and the person who is challenging the last will. 

Other parties (including executors named in previous wills and former and current beneficiaries) may join the proceedings depending on the facts and circumstances.