Challenging A Will in NSW?

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    In challenging a Will, you are disputing the legal validity of the Will.

    Sadly, challenges to a Will usually happen at the worst possible time – when the people involved are still grieving. These are difficult circumstances and it is understandable that not everyone knows where to begin or what steps to take.

    If you need legal advice on the processes involved in challenging a Will, our dedicated team at WillClaim can help you.

    Why Challenge a Will?

    Based on our experience in dealing with Will Disputes cases in NSW, the following are the most common grounds for challenging a Will:

    • The Testator (deceased) did not have mental capacity to create the Will at the time it was signed
    • There is evidence of fraud or forgery
    • The Will was made under the undue influence of others
    • The Will was not properly witnessed
    • The Will does not include a promise that the Testator made to someone about what they were going to receive in the Will

    If you have concerns that the Testator did not understand the consequences of creating or changing the Will, you should seek advice.

    What’s the difference between ‘contesting’ and ‘challenging’ a Will?

    Contesting a Will is different from challenging a Will.

    If you think you have been unfairly left out of a Will, you can contest it by launching a family provision claim in NSW. In this case, you are asking the Court to rewrite a part of the Will in your favour.

    On the other hand, if you believe that the person who made the Will was not mentally fit or was put under pressure to change their Will, you can challenge the Will and ask the Court to declare the Will invalid. If the Court finds that the Will is not valid, an earlier valid Will made by the Testator will determine how the Testator’s estate is distributed, and in the absence of an earlier valid Will, the rules of intestacy will apply.

    If you were promised by the Testator that they would leave you something in their Will, and you have relied to your detriment on that promise (for example, by staying and working on a farm, or contributing money to the improvement of a house), then you can ask the Court for an order to uphold that promise.

    In these circumstances, the Court may find that the asset is held on constructive trust for you and the promised asset will effectively be removed from the estate and transferred to you notwithstanding the other terms of the Will. Alternatively, the Court may find that there is an equitable estoppel, which prevents the Will maker from making provisions in a subsequent Will that deprive you of the asset.

    Still have questions?

    How to Challenge a Will in NSW?

    If you want to challenge a Will you need first to contact a lawyer who specialises in Will Disputes in NSW. This is an important step as you will want to stop the executor of the estate distributing the estate until there is a final decision on the validity of the Will.

    How to Challenge a Will in NSW: FAQs

    Who can challenge a Will in NSW?

    You can challenge a Will in NSW if you are a beneficiary under a previous valid Will, or if you would be entitled to a share of the estate under the rules of intestacy. If someone dies without a valid Will they are said to have died “intestate”. This means their assets will be distributed amongst their surviving relatives in accordance with the rules in the Succession Act 2006.

    In NSW, the main rules for distribution on intestacy are as follows:

    • If you leave a spouse but no children, your spouse is entitled to the whole of your estate.
    • If you leave a spouse and have children with that spouse (but no children from a previous spouse), then the spouse is entitled to the whole of your estate.
    • If you leave a spouse and have children with a former spouse, then your current spouse is entitled to your personal effects, a statutory legacy, and half of whatever is remaining. The children are entitled to the other half.
    • If you leave children but do not leave a spouse, the children are entitled to your estate in equal shares.
    • Other relatives such as your parents, siblings and grandparents will generally be entitled to a share of your estate if you did not have a spouse or children at the time you died.
    • If no persons are entitled to a share of your estate under these rules, all of your assets will become the property of the New South Wales government.

    If you are eligible and you want to challenge a Will, you may call WillClaim on (02) 8875 7792

    Is there a time limit for challenging a Will?

    Unlike a claim for family provision, there is no strict time limit for challenging a Will. However, you may need to act quickly to ensure that the executor has not already distributed the estate.

    After an executor is legally empowered to deal with the assets of a deceased person’s estate (usually after receiving a grant of Probate or Letters of Administration) the assets and interests held by the deceased can be called in and distributed.

    In NSW, an executor will usually not distribute an estate prior to six months from the deceased’s date of death, but in some cases, distribution may take place sooner. You should therefore immediately seek legal advice to protect your rights. If you are challenging a Will.

    Call WillClaim now on (02) 8875 7792. Our legal team can arrange a free appraisal and determine if your case is winnable.

    What are the main reasons for challenging a Will?

    Based on our experience in dealing with Will Disputes cases in NSW, the following are the common grounds for challenging a Will:

    • The Testator (deceased) did not have mental capacity to create the Will at the time it was signed
    • There is evidence of fraud or forgery
    • The Will was made under the influence of others
    • The Will was not properly witnessed
    • The Will does not include a promise that the Testator made to someone about what they were going to receive in the Will

    How is it determined whether a Will is valid or not?

    The Court will consider the following questions in determining the validity of a Will:

    • Is the document really the last Will made by the Testator?
    • Was the Will properly executed?
    • Did the Testator have sufficient mental capacity at the time the Will was made?
    • Was the Will drawn up under undue influence?
    • Was the Will changed after it was originally signed?

    What is testamentary capacity?

    “Testamentary capacity” is the mental capacity required to create a valid Will. Specifically, anyone who creates a Will must understand:

    • the value and extent of their estate;
    • who they are expected to provide for in the Will and who the beneficiaries will be; and
    • how their estate will be distributed under the terms of their Will.

    In order to challenge a Will on the basis that the Testator lacked mental capacity, you must first prove that they suffered from:

    • dementia or senility;
    • some other form of medical condition which would result in them having a reduced mental capacity; or
    • the influence of drugs, alcohol or other substances which are capable of altering a person’s mental state at the time of executing the Will.

    Do I have to go to Court if I challenge a Will?

    You need to be prepared for the possibility that you will have to go to Court, but most claims are settled well in advance of a Court hearing. However, even if the matter does not go to a hearing you may be required to attend a mediation with the Executor of the estate.

    A mediation is a meeting between the parties and their legal representatives which is facilitated by an independent mediator. The mediator helps the parties to work through options and see if you can agree on settlement.

    While meeting with the other side in a mediation or at Court can be stressful, you can be sure that your WillClaim lawyers can guide you throughout the process.

    Ready to challenge a Will in NSW?