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.

Ready to challenge a Will in NSW?