Challenging a Will in NSW

Feel like you’ve been unfairly excluded or not adequately provided for in a Will? Challenging a Will is possible if you believe it is not legally valid under certain grounds for contention, or the financial needs of a dependent have not been met. Such claims are referred to as family provision claims.

Below, we’ve compiled a guide to challenging a Will in New South Wales (NSW). Read on to discover what’s involved in this process, who is eligible to make a family provision claim, the grounds for contention and other key considerations.
 

Why challenge a Will?

You may decide to challenge a Will for a variety of reasons, including:

• A beneficiary was not adequately provided for in the Will;
• There was an obvious mistake in the Will;
• The Testator made a documented promise to a certain person that they would receive a portion of the estate but this has not been fulfilled; or
• The Testator was subjected to undue influence or lacked the mental capacity to execute their Will properly.

If any of the above situations apply to your case, please confirm your eligibility to contest the Will in the next section.
 

Who can challenge a Will in NSW?

Under the Succession Act 2006 (NSW), the following ‘eligible persons’ may apply to the Supreme Court for further provision from the deceased estate:

1. Spouse of the deceased person at the time of their passing;
2. Former spouse of the deceased person;
3. De facto partner of the deceased person at the time of their passing;
4. Child of the deceased person;
5. Grandchild who was, at any time, partly or wholly dependent on the deceased person;
6. Person who was, at any time, wholly or partly dependent on and a member of the same household as the deceased person; or
7. Person who shared a close personal relationship with the deceased person at the time of their passing.

Importantly, a Will can also be challenged on certain grounds without the need for the claimant to fall under one of the above categories. Continue reading to find out more about each of these qualifying circumstances.
 

Grounds for challenging a Will in NSW

In NSW, an eligible person can contest a Will on several grounds.
 

Lack of testamentary capacity

If the Testator does not have the mental capacity to comprehend the importance and implications of their Will when they make it, then this document may be considered invalid.

When making the Will, the Testator must:

• Understand the purpose and implications of making a Will;
• Be aware of the types and amount of assets they own;
• Recognise any moral duties they have towards family members and dependents; and
• Not be living with a mental condition that may interfere with their ability to make a fair and reasonable Will.

 

Fraud

Fraud occurs when a person other than the Testator signs the Will, or hides or destroys a later Will without the Testator’s knowledge or permission.

To contest a Will for this reason, you will have to persuade the court that a beneficiary committed fraud in order to obtain a benefit under the Will, and that the act had a direct impact on the making of the Will.
 

Undue influence

In the case of undue influence, the Testator has been coerced, threatened or forced into structuring their Will in a certain way to make their Will in a particular way.

To successfully challenge a Will on these grounds, you must present evidence of this external pressure to the court (note that proof of persuasion alone is not sufficient).

If you are able to demonstrate that the Testator was subject to undue influence, the court may deem the Will invalid and revoke its terms.
 

Forgery

When a person makes a Will, it is presumed that they are aware of and satisfied with its contents. With forgery, a Will has been executed or signed by someone pretending to be the Testator.

To challenge a Will on this basis, you must provide proof that the Testator did not know nor approve of its terms.
 

Can I challenge a Will if all the assets in the estate are either joint assets or superannuation?

Yes. Provided you satisfy the other criteria to contest a Will, you may be able to make a claim to distribute the deceased’s joint assets and superannuation.

Under Part 3.3 of the Succession Act, the Supreme Court can make an order that designates certain assets which are not usually included within a deceased estate as ‘notional estate’ to fulfil a claim for adequate provision.

Some transactions made up to three years before the Testator’s date of death may also be deemed notional estate under certain circumstances.

If you would like to learn more about this process in NSW, please book a consultation with our Wills & Estates lawyers for personalised advice.
 

Is there a time limit for challenging a Will?

Yes. If you wish to challenge a Will in NSW, you must file a family provision claim to commence court proceedings within 12 months of the Testator’s date of death.

The only exception is if you can demonstrate ‘sufficient cause’ to extend the timeframe. Once the court considers the unique circumstances of your case, they may decide to make orders after 12 months.

If you are running out of time to challenge a Will, please get in touch with our Wills & Estates lawyers urgently to progress with your case before it is too late.

Another point to note is that challenging a Will on some of the grounds referred to above (eg. Undue influence or lack of testamentary capacity) after Probate has been granted may be more difficult, as you will have to convince the court to revoke Probate and establish why you did not act before it was granted. Not to mention, the assets may be distributed at any moment.

To prevent this from happening before you have a chance to challenge the Will, you may be able to file a Probate caveat, which will stop a Grant of Probate from being issued until the parties agree to remove the caveat or a court order is made.
 

How to challenge a Will in NSW

In general, the process for challenging a Will follows the below eight steps:

1. Determine whether or not you are eligible to contest the Will.
2. Notify the Executor of the Will (usually via your solicitor) of your intention to challenge the Will. This Executor will be advised not to distribute the estate until the matter is resolved.
3. Enter negotiations with the other party to settle the matter outside of court. If you reach an agreement at this stage, a formal agreement will be created to protect the interests of both parties.
4. If you are unable to reach consensus, court proceedings will be commenced so that a judge can decide whether the Will is valid or whether provision should be made for you from the estate. Typically, the party insisting that the Will is valid or seeking provision from the estate will initiate proceedings by filing a summons and an affidavit in court, along with any evidence to support their stance.
5. File a defence to this claim, detailing the reasons why you believe the Will is invalid and providing supporting evidence in the form of an affidavit.
6. Participate in mediation with the other party to attempt to resolve the dispute without litigation.
7. If mediation proves unsuccessful, you will need to go to trial. At the final hearing, both parties are required to present their position before the court.
8. Wait for the judge to determine whether the estate is obliged to make provision or further provision, and how much. The judge will also confirm which party must pay for the legal fees.

Section 60(2) of the Succession Act specifies 16 factors that the Court will consider in making its determination. These include:

• The character and conduct of the eligible person, both prior to and following the Testator’s passing;
• Any contribution made by the eligible person towards the deceased’s estate or welfare during their life; and
• Any other matters it deems significant.

Please note that the above process is only a general guideline and that you may need to take additional steps, according to the unique circumstances of your case.
 

How long does it take to challenge a Will?

The length of time it takes to challenge a Will depends on the complexity of your case and the willingness of involved parties to settle the dispute.

Broadly speaking, it tends to take approximately six months to reach a settlement outside of the courtroom, and about two years if you require a court hearing. However, this process can progress quicker if all parties are willing to negotiate with one another and provide necessary documents on time.
 

Who pays the legal costs to challenge a Will in court?

The judge will determine who pays the legal costs of court proceedings when you are challenging a Will.

When making this decision, the general guideline is for the estate to cover the claimant’s legal costs if their claim is successful. If your claim is unsuccessful, then you will likely be ordered to pay not only your legal fees, but also those of the estate.
 

Get personalised legal support with challenging a Will in NSW

A loved one’s passing is a difficult time that can be made all the most distressing if a dispute arises over the deceased estate. Challenging a Will is never an enjoyable experience, but knowing how to navigate this legal process properly can make all the difference.

If you believe that you have been unfairly left out of a Will, please seek professional legal advice from a trusted Wills & Estates lawyer as soon as possible to ensure that your claim is lodged within the recommended time limits. Moreover, if your claim proves unsuccessful, you may be faced with expensive Court fees.

At O’Hearn Lawyers, our Wills & Estates lawyers have extensive experience in family provision claims and other Will dispute matters. Please contact our team in Newcastle or Port Stephens to organise a consultation for tailored support today.