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Challenging a Will in NSW


Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Adelaide: (08) 8410 0055
Perth: (08) 9321 5505

Alun Hill

When you challenge a will you are challenging the validity of the Will itself. A challenge to a Will is often for these main reasons: Undue Influence, Fraud, Forgery, or lack of Mental Capacity (referred to as testamentary capacity).

Our team practices exclusively in Wills and Estates Law and are here to guide you through the process to the best possible outcome. If you are considering challenging a will, or if you have a question, we encourage you to call us on 1300 168 676 for a free initial case assessment.

Each State of Australia has a different set of rules which apply when challenging a Will. There are different time limits and eligibility differs in each State depending on where the deceased died. If the deceased died in NSW, the information below is relevant.

Challenging the validity of a Will

You can challenge the validity of a Will before or after there has been a grant of Probate. However if an executor has begun administering and distributing the estate, it may be more difficult to challenge the validity of the Will.

The people who can challenge the validity of the Will are:-

  1. Beneficiaries named in a previous Will;
  2. Beneficiaries named in the current Will;
  3. Persons who would be entitled to the estate if there was no Will (that is persons entitled under intestacy)

Some of the reasons why the validity of the Will can be challenged are as follows:-

  1. There is fraud involved;
  2. The testator lacked mental capacity;
  3. The testator did not know and approve of the contents of the Will;
  4. There was undue influence; or
  5. The Will is a forgery.

Other reasons why a Will can be contested or challenged are:-

  1. Family Provision;
  2. Trusts; and
  3. Contracts.

How to challenge a will in NSW?

To challenge a Will in NSW you should commence proceedings in the Supreme Court of NSW.

If you wish to challenge the validity of a Will, the first step would be to find out if Probate has been granted. You can do this by calling the Supreme Court of NSW and asking if there has been a grant of Probate.

You may also wish to file a Probate caveat, which will prevent a grant of Probate. Once you file a Probate caveat, the Court will not make a grant of Probate until the parties agree that the caveat can be removed or the court makes an order.

If you cannot reach an agreement with the other party regarding the validity of the Will and removing the caveat, one of the parties must commence Court proceedings so that a Judge can decide the outcome.

Usually Court proceedings are commenced by the claimant, by filing a Statement of Claim. The claimant is ordinarily the person who is arguing that the Will is valid. The Statement of Claim sets out the reasons why the Will is allegedly valid.

The other party (the defendant) then files a Defence to the Claim in Court setting out the reasons why the Will is allegedly invalid.

Both parties should then prepare evidence in the form of affidavits to support their claim or defence. These affidavits are filed in Court and the Judge considers this evidence before making a decision as to the outcome of the proceedings.

To discuss whether you have a case, please call us on 1300 168 676 for a free case assessment.

How long can a Will be Challenged? (Time Limits)

There is no time limit for challenging a Will. Probate can be challenged after it has been granted.

Please note however that challenging a Will does not refer to contesting a Will. Contesting a Will refers to a family provision claim and there are time limits for contesting a Will.

In NSW a family provision claim must be made within 12 months of the date of death. However there is no time limit for challenging a Will on the following grounds:-

  1. The person who made the Will lacked testamentary (mental) capacity;
  2. Fraud;
  3. Undue influence;
  4. Forgery;
  5. The persons who made the Will did not know and approve of the contents of the Will.

Notwithstanding if you are thinking of challenging a Will, you should act sooner rather than later.

If you intend on challenging a Will after Probate is granted, you have a great onus of proving the grounds for revoking the grant and explaining why you failed to prevent Probate being granted in the first place.

Who can challenge a Will in New South Wales?

Not just anyone can challenge a Will.

In New South Wales, you can challenge a Will if you have standing (or the right to challenge the validity of a Will).

You have the right to contest the validity of a Will if you:

  1. were named as a beneficiary in an earlier Will;
  2. are a beneficiary in the deceased’s last Will;
  3. would be beneficiary under the laws of New South Wales if the deceased did not have a Will.

However you are not entitled to challenge the validity of a Will if you do not have an interest in the deceased’s estate.

Grounds for Challenging a Will

In New South Wales, there are a number of grounds for challenging a Will or contesting a Will.

The main reasons for challenging or contesting a Will are as follows:-

The person who made the Will lacked testamentary (mental) capacity;

  1. If a person lacks capacity when they are executing a will, a will is invalid.
  2. The test for capacity is set out in the case Banks v Goodfellow (1870) 5QB 549 at 565.
  3. In summary, there are four things that must be fulfilled at the time a person signs his or her Will. The person who makes the will must:-
    1. Understand that he or she is making a Will and what that means;
    2. Recall the nature and extent of their property in general;
    3. Understand and appreciate any moral obligations they may have towards family, for instance understand who may have claims on their estate; and
    4. Not be affected by a disorder of the mind or delusion to the extent that the will made would not have been made if the will maker was of sound mind.

Fraud;

  1. Fraud could exist if you think a beneficiary has committed fraud for the sole purpose of receiving a benefit under the will.
  2. You need to convince a judge that there is evidence to prove fraud was committed.
  3. It must be established that the fraudulent conduct had a direct effect on the making of the Will and that the fraudulent conduct was committed by the beneficiary for the sole purpose of receiving a benefit under the will.

Undue influence;

  1. If you can establish that a person made the will under undue influence, a court may declare the will to be invalid. If a will is invalid it will not be admitted to Probate.
  2. Undue influence or duress may consist of a psychological or physical threat.
  3. You need evidence that there was coercion. Persuasion is not enough to establish undue influence.

Forgery;

  1. You need evidence to prove that the Will was made by someone else or signed by someone else and is a forgery.

The person who made the Will did not know and approve the contents of the Will

  1. When a person makes a will, they are presumed to have known and approved the contents.
  2. You need to establish that the person who made the Will did not know and approve the contents of their Will.
  3. If there are suspicious circumstances casting doubt into whether the person who made their will knew and approved of the contents, please contact one of our solicitors.

Family Provision (often referred to as contesting a Will)

  1. If you are eligible and you have not been adequately and properly provided for, you may bring a claim for provision or further provision from the deceased’s estate.

Contract

  1. The deceased may have entered into a contract regarding their estate.
  2. If they have not adhered to the terms of the contract, there may be a claim for a breach of contract.

Trusts

  1. A trust is a legal device that separates the ownership and control of an asset.
  2. Trusts are used to protect assets or minimise tax.
  3. The deceased may have established a testamentary trust.
  4. A testamentary trust is established under a Will to appoint a trustee to use property for the benefit of a beneficiary as specified in the Will.
  5. A beneficiary can challenge the decision making of a trustee, but you need to take action in court.
  6. If you wish to challenge a testamentary trust, please contact one of our solicitors.

In some cases, if you wish to challenge or contest a Will, you may need to do so before Probate or administration is granted.

Cost of challenging a will / who pays to challenge a Will?

The Judge has discretion as to who pays the costs of the proceedings.

Generally, the successful party is entitled to an order that the other party pay their costs. The losing party may be ordered to pay the successful party’s ordinary costs. Ordinary costs are not always the entire amount of costs incurred.

At times there may be an argument about the amount of ordinary costs. If there is an argument about ordinary costs, an application can be made to the Court to have costs assessed. Please call one of our lawyers if you wish to discuss legal costs in further detail.

A "Sanderson Order" is an order that the costs of the winning party should be paid by the losing party. See Sanderson v Blyth Theatre Co [1903] 2 KB 533.

A "Bullock Order" is an order that a losing defendant should pay the winning defendant’s costs in a case where there are two defendants joined by the plaintiff, as there is uncertainty as to which was liable. See Bullock v London General Omnibus Co [1907] 1 KB 264.

Challenging Caveats in NSW

There are two kinds of caveats.

1) Property Caveat

The first type of caveat is known as a property caveat. This is a caveat on real property, that is real estate.

Generally a property caveat has nothing to do with Wills and Estates and if you are challenging a Will you are not entitled to lodge a property caveat.

2) Probate Caveat

The second type of caveat is known as a Probate caveat. The Court will not grant Probate if a Probate caveat has been filed in Court until the parties agree for the caveat to be removed or unless the Court makes an Order.

If you dispute the validity of a Will and you are an interested person, you may be able to file a Probate caveat to prevent Probate of that Will being granted.



Disputes regarding the validity of a Will and Caveats

An interested person who is challenging the validity of a Will may file a Probate caveat to prevent Probate of a Will being granted.

If parties cannot agree to have a caveat removed, then a Court may make an Order regarding the issue. In order for a Judge to decide the issue, one of the parties must commence proceedings.

These types of proceedings are commenced by filing a Statement of Claim. Usually the person who is alleging that the Will is valid would file the Statement of Claim setting out the reasons why the Will is valid.

The person who filed the caveat usually files a Defence to the Claim and sets out the reasons why they allege the Will is invalid.

Then both parties will prepare evidence to support their case. The evidence is in the form of affidavits. The Judge will consider all the affidavit evidence before making a decision.

Challenging an Executor of a Will

Generally speaking beneficiaries have no rights at all until the executor or administrator has administered the estate and it is ready for distribution.

The administrator has ownership of the estate assets personally during the administration process, as the assets of the deceased are "vested" in the administrator personally. This means that beneficiaries have no say during the administration process.

Once the administration process is complete, beneficiaries may request that the administrator provide a complete set of accounts of the administration. If the administrator refuses, the beneficiaries may seek court orders for the filing of accounts.

Beneficiaries will be able to review the accounts and investigate whether the estate was administered properly. If there is a dispute regarding Estate administration, the beneficiaries may be able to apply to the Court for redress.

If the administrator is guilty of dishonesty by favouring himself over other beneficiaries, fraud or gross negligence while administering the estate, then the beneficiaries may be able to apply to the Court and seek an order preventing the administrator from continuing the administration. In extreme cases, you may seek a revocation of the grant of Probate or administration.

Executors may be entitled to receive commission. Usually an executor may receive commission with the consent of the beneficiaries or by Court order. Beneficiaries may be able to ask the Court to consider whether an executor or administrator should receive any commission.




where to next?

Have you been left without adequate provision from a deceased estate? We offer a free assessment of your case and a no win no fee policy. We have a specialist team that deals only in Wills & Estates servicing NSW, VIC, QLD, ACT, SA & WA. The law relating to Wills and Estates can often be complex and confusing so we encourage you to make contact with our team.

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Adelaide: (08) 8410 0055
Perth: (08) 9321 5505