Who Can Challenge a Will in NSW
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 can 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 will challenge will depend on the facts and circumstances of each case.
Grounds for Challenging a Will
There are many grounds upon which a person may challenge a will.
Examples of grounds for challenging a will include:
- Lack of testamentary capacity – i.e. where the will-maker had dementia, Alzheimer’s or other cognitive illness or disease when they made their will.
- Suspicious circumstances – i.e. where a person who was present when the testator gave instructions to their lawyer takes an unusually large benefit under the will, or more concerningly, where that person prepared the will themselves.
- Undue influence – i.e. where the will-maker (formally known as the ‘testator’) was coerced into making a will they would not have otherwise made.
- Fraud – i.e. where a will was brought about through false or misleading statements.
Can a person living outside the state of NSW still challenge the will?
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 not residents of NSW 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.
Common Grounds for Challenging a Will in NSW
The Testator 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 at the time they provided instructions for 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 Suspicious Circumstances
Suspicious circumstances may arise where 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.
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.
You Suspect Fraud
Fraud is more egregious than undue influence.
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.
Frequently Asked Questions
The cost of challenging a will depends on many factors, including the complexity of the issues, the parties’ willingness to negotiate, the lawyers fee structure, and the timing of the resolution.
Most matters can be resolved through negotiations and mediation and the costs can often be confined to $20,000 to $50,000.
However, matters that proceed to a court hearing can cost $100,000 or more.
Whilst there is no mandatory requirement to hire a lawyer, the process of challenging a will can be complex and requires a thorough understanding of the relevant succession laws.
An experienced wills and estate lawyer can help achieve the best outcome.
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 lacked 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 sometimes be unrecoverable.
A claim left too late may be futile if all estate assets have been distributed and are unable to be clawed back into the estate.
If you are unsure about your ability or eligibility to challenge a will in NSW, contact us now on [email protected] or 1300 414 844 for a confidential and obligation-free initial consultation.
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.