How to Challenge a Will in NSW
To challenge a will means to take issue with the validity of the will. There are many grounds on which a person may challenge 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.
Grounds for Challenging a Will in NSW
The Will-Maker Lacked Testamentary Capacity
For a will to be valid, the will-maker (formally referred to 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 remains the leading authority for determining whether a testator had power to make a Will. In Banks v Goodfellow, Cockburn LCJ found that in order for a testator to have testamentary capacity the testator must:
- understand the nature of the act of will making and its effects;
- understand the extent of the property of which he or she is disposing in the document
- comprehend and appreciate the claims to which he or she ought to give effect; and with a view to that object; and
- 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 at the time of making a particular will, the court may ‘pass over’ that will and grant probate for an earlier valid will. If there is no earlier valid will, the court may find that the testator died ‘intestate’ (that is, without a will) and grant letters of administration to the estate’s administrator or legal representative.
Undue Influence is Suspected
Undue influence may arise where a person makes a will under ‘coercion’, in other words, a will against their wishes.
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. Examples of where coercion may arise include where a child or grandchild places considerable pressure (either verbal or through conduct and/or actions) on their parent or grandparent to such an extent that the parent or grandparent is coerced 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 coercion.
The onus of proving undue influence rests on the party that alleges it and it is often very difficult to establish. A person who alleges undue influence but is ultimately unsuccessful may be ordered to pay the other parties’ costs.
The Will-Maker’s True Intentions Are Not Represented
There are many reasons why a person may suspect 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 later 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.
A Forged Will
If a will has come into existence through fraud or forgery, the will is invalid, and the court will not grant probate for that 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 the preceding valid will, or if there is no prior valid will, determine that the deceased died ‘intestate’, that is, without a valid will and grant letters of administration to the estate’s administrator or legal representative.
A Will created under Fraud
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 alleging the fraud 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.
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.
Potential claimants may include:
- A family member or close friend of the deceased whose will has not been properly executed.
- A family member or close friend of the deceased whose will is unclear in its interpretation.
- A family member or close friend of the deceased whose will was prepared by a person who was not a lawyer.
- A person who is named as a beneficiary in an earlier will who is left out of a subsequent will.
- A person who is named as a beneficiary in an earlier will who has had their benefit reduced in a subsequent will.
- 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.
- A person who is named as a beneficiary in an earlier will who suspects a subsequent will has been prepared under suspicious circumstances.
- A family member or close friend of the deceased who died with dementia or Alzheimer’s.
- 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 strength 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 estates lawyer.
The Process of Challenging a Will
Meet With a Lawyer to Discuss Your Situation
The first step is to call our office and schedule a free 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 and the estimated costs.
If we can assist we will send you a Costs Agreement and our Terms and Conditions.
Engaging in Negotiations
Most will and estate disputes can be resolved through negotiations and/or mediation.
The negotiation process usually involves the claimant’s lawyer writing to the executor (and any other parties) setting out the claimant’s position and legal reasoning. If the claimant has already received an offer, their lawyer will be able to assist 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 recommended 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.
The Possible Outcomes of Challenging a Will
It is estimated that over 90% of will disputes are resolved outside of court through negotiations and mediation.
If an agreement can be reached outside of court, the beneficiaries can agree for the estate to be distributed in a manner different from the terms of the will.
If the matter proceeds to court, the outcomes may include:
- If the court is satisfied that the grounds to challenge the will have been proven, the court may refuse to grant probate for that will, and instead grant probate for the preceding valid will. If there is no earlier valid will, the court may determine the testator died ‘intestate’, that is, without a valid will and grant letters of administration.
- If the court proceedings prove unsuccessful, and court finds that the will is valid, the claimant may be liable to reimburse the executor for its legal costs.
Frequently Asked Questions
What is the difference between challenging a will and contesting a will?
To challenge a will 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 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’.
What is the time limit for challenging a will in NSW?
The facts and circumstances of the case will determine what time frames apply when challenging a will.
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.
The later the claim, the increased risk that the executor may distribute the estate assets to the beneficiaries named in the will. Once assets are distributed to beneficiaries, they become held by the beneficiaries and once held by third parties can be unrecoverable.
In some cases, a claim left too late may be futile if all estate assets have been distributed to beneficiaries and are unable to be ‘clawed back’ into the estate.
Can I challenge a will if I am not a citizen of Australia but the deceased was?
A person’s eligibility to challenge a will depends on the nature of the claim and the person’s relationship to the deceased.
The claim does not depend on the claimant’s geographical location or citizenship.
However, claimants who are non-citizens may face additional challenges including being required to pay money into court before the court allows a claim to continue, and may face higher federal or state taxes (stamp duty, land tax etc) if their claim is successful and they become the owner of property located in Australia.
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.
