To challenge a will means to take issue regarding the validity of will. The common grounds upon which a will may be challenged include undue influence, fraud, or where it has been prepared under suspicious circumstances. 

The facts and circumstances of each case determine whether a last will and testament can be challenged and on what grounds. 

Grounds for Challenging a Will in NSW

Lack of Testamentary Capacity

Testamentary capacity refers to a will-maker having sound mind, memory, and understanding of what they are doing at the time the will was made. A lack of capacity may arise as a result of cognitive impairment, impaired mental capacity to make a will, a disorder of the mind such as dementia, or if the testator was under the influence of drugs or alcohol at the time. A testator must know and approve its contents and have actually understood the terms. 

When a person is proven to have lacked the required testamentary capacity at the time of making their will, including where the deceased had a lack of knowledge and approval of the contents of their will, the will is invalid. 

Undue Influence or Duress

Undue influence may arise when a person makes a will against their wishes – in other words, where a person has been coerced into making or signing it. 

A will may be found to be invalid if coercion prevented the will from reflecting the intentions of the deceased. 

Undue influence can be difficult to prove, as the will may appear legitimate. If a claim is unsuccessful, the court may order the claimant to pay one or more of the other party’s costs.

Will Made Under Fraud or Deception

Another type of claim is when a will is challenged on the grounds of fraud or forgery.

Fraud typically involves the creation of a will that is the product of false or misleading facts or circumstances that misled the deceased into making a particular will, where the deceased was misled into executing the will, or where the will does not appear to be signed by the testator.

To prove fraud, a party needs to show the beneficiaries were party to the deceit, the deceit was practiced to secure the benefit, and the benefit must be made a consequence of the deceit.

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

There may be many reasons why a person may suspect that a will does not reflect the deceased’s testamentary 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 will be required to settle the dispute and determine the correct construction.

Questions may also arise where a will-maker’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 testator’s intentions in an attempt to restore themselves as a beneficiary. In some cases, the person may have a valid claim, but in others, they may not.

Who Can Challenge a Will in NSW?

A person’s eligibility to bring a challenge depends upon the grounds upon which the person is seeking to challenge the will, and their relationship to the deceased.

Common reasons to challenge a will include where a loved one made a will after a dementia diagnosis, or where there are concerns about the validity or execution of the will.

There are many other reasons why someone may wish to challenge a will and the eligibility and success of a claim will depend on the facts and circumstances of each case.

It is important to seek legal advice if you are considering contesting the validity of a loved one’s will.

Proving Your Case

The Burden of Proof in Will Challenge Cases

It is the executor’s role to seek probate from the probate registry, and in doing so, must either rely on presumptions or provide evidence to establish the will’s validity. If a will is invalid it will prevent the court from issuing a grant of probate.

A person who challenges a will generally has the onus of proving their case. For example, if a person claims the will was made under fraud, they will need to provide evidence to satisfy a court that the will is fraudulent.

The onus of proof in succession law is complex and it will depend on the facts and circumstances of each particular case.

Collecting and Presenting Evidence

The success of a will challenge depends on the extent and quality of the evidence.

Evidence comes in many forms including written evidence, testimonial evidence, physical evidence, expert evidence, records and information from third parties, digital and electronic evidence, medical evidence, and expert evidence. An experienced estate lawyer is best placed to guide you through the formal requirements of gathering evidence for a claim.

The Role of Expert Witnesses

Expert evidence is opinion evidence that is given by a person and is expressed to be wholly or substantially based on the person’s specialised knowledge based on their training, study or experience.

An example of expert evidence includes evidence from a geriatrician or similarly specialised medical practitioner as to whether the testator had the requisite capacity at the time of making their will or a handwriting expert, who is engaged to provide an opinion on whether a signature has been forged.

Time Limitations and Other Considerations When Challenging a Will

The facts and circumstances of the case determine what time frames apply. 

If you suspect a will was not properly executed (such as lacking the presence of two witnesses), or there were suspicious circumstances surrounding its preparation, or the testator lacked testamentary capacity when he or she made it, 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.

Unlike contesting a will, where strict time limits must be met, challenging a will can take place at different stages of the process, including during communications with the executor, or after probate is granted. It is possible to challenge a will after the grant of probate, but it may be more difficult, especially if the assets have been wholly or partly distributed. 

Initiating a Challenge: Required Documents and Court Procedures

Some disputes can be resolved via negotiations between the parties.

Where negotiations don’t succeed and the matter proceeds to court, the applicant may make an application to challenge to the court. Claims are made via summons or statement of claim, depending on the nature of the claim and the facts and circumstances of the matter. An experienced estate lawyer can assist with preparing the required court documents and complying with the court procedures.

Potential Outcomes and Implications

Possible Court Decisions

Where a will is found to be invalid due to undue influence, fraud, or lack of testamentary capacity, the court can ‘pass over’ the invalid will and instead grant probate for an earlier, valid will. If there is no earlier valid will, the court 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, and the estate may be distributed in accordance with the rules of intestacy.

Impact of a Successful Will Challenge on Estate Distribution

If you are ultimately successful, the court could 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 estate will be distributed in accordance with the ruling.

Consequences of an Unsuccessful Claim

If a person wishes to challenge a will and retains a lawyer to represent them, the claimant is required to fund their own legal representation and the costs involved depend on the lawyer’s fees and the terms of the cost’s agreement between the client and lawyer.

If the claimant is unsuccessful, the court may order them personally liable to pay one or more of the other party’s costs.

The Difference Between Challenging and Contest/Disputing a Will

Challenging a will involves taking issue with its validity where it was prepared under coercion, fraud, or a medical or cognitive impairment.

Contesting a will (commonly known as a family provision claim) is when a person has been disinherited or takes issue with the share of the estate they received and seek a larger share. There are strict timeframes, eligibility and grounds for contesting a will. The legal process involves a person bringing a claim, and a court determining whether or not a claimant was adequately provided for in a deceased’s will.

Looking to Challenge the Validity of a Will? Let Empower Wills and Estate Lawyers Help You

If you want to challenge a will and discuss how to get a positive outcome, you can make an appointment today with Empower Wills and Estate Lawyers.

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.