Challenge A Will FAQs

Frequently Asked Questions

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.