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Where there’s a Will, there’s a way.

By Johanna Woodland

It seems that lately everyone has a friend of a friend whose great uncle Harry’s Will was challenged. However, simply not agreeing with the terms is not a valid reason for contesting a Will.

How to contest a Will

If someone believes that they have not received what they deserve or that the Will does not reflect the deceased’s wishes, there are three main avenues to contesting a Will:

  1. Family provision claims – where a person feels like they have been left out of a Will or not received enough from the Estate;
  2. Lack of capacity – the allegation that the deceased did not have the mental capacity to make a Will at the time; and
  3. Undue Influence – where there are concerns that the deceased was unduly influenced to make their Will in a particular way by a family member or other person.

Capacity to make a Will and undue influence

If a person did not have capacity at the time of making their Will or was being influenced by a family member or other person, it may be possible to challenge the validity of this person’s Will.

How to prove undue influence or lack of capacity in a Will

Whether a challenge is successful will depend on the evidence available, for example:

  1. Whether medical opinion as to capacity was sought at the time by the solicitor drafting the Will;
  2. Any statements from the deceased regarding their relationship with the person/s in question;
  3. Any independent evidence from other persons regarding undue influence including whether the solicitor saw them alone, and whether the person in question noted to be driving the conversation; and
  4. Any file notes made by the solicitor or other persons at the time which comment on capacity or undue influence.

Contesting a Will with a family provision claim

If someone feels like they have been left out of a Will, or not received a fair amount, they may be able to apply for the NSW Supreme Court to vary the Will or distribute the estate in a different way to what is written. This is referred to as applying for a family provision order. Despite our catchy heading, a person can also do this if the deceased died without a Will, and the formula for distribution of an estate on intestacy is not adequate to provide for their proper maintenance, education or advancement in life.

Contrary to popular belief, leaving someone $1.00 in a Will does not prevent them from making a family provision claim.

But wait! Who are eligible persons for family provision claims?

In NSW, a person must be an ‘eligible person’ to be able to apply for a family provision order.

Eligible people include:

  • a person who was the spouse of the deceased at the time of the deceased’s death,
  • a person with whom the deceased was living in a de facto relationship at the time of the deceased’s death,
  • a child of the deceased,
  • a former spouse of the deceased,
  • a person:
    • who was, at any particular time, wholly or partly dependent on the deceased, and
    • who is a grandchild of the deceased or was, at that particular time or at any other time, a member of the household of which the deceased was a member,
  • a person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.

Time limit to contest a Will

Generally, an eligible person will have 12 months after the date of death to make an application to the Supreme Court of NSW. This time limit for contesting a Will can be extended in very limited circumstances.

Next time

In Part Two of this series, we will take you through what the Court looks at when considering a family provision claim, including the needs of the person claiming and the effect of estrangement.

If you’re looking to protect your Will from challenges or considering contesting a Will, contact our experienced Estates team on 4951 8199 or click below to get in touch.


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The material included in this website is produced by O’Hearn Lawyers Pty Limited.  It is designed and intended for general information purposes only.  The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such.  You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have. 

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