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What Happens If A Will Is Invalid? (NSW)

In New South Wales, certain people have a statutory right to challenge the validity of a will. These interested parties can dispute a will before the Supreme Court of NSW if the will does not comply with statutory requirements if there is cause to suspect that the testator was unduly influenced or lacking testamentary capacity, or if the will itself is fraudulent. This article outlines what happens in NSW if a challenge is successful and a will is found to be invalid.

What Makes A Will Invalid?

The legal basis to challenge a will is the same throughout Australia, with an onus on the challenger to prove that a will is invalid. The Supreme Court of NSW can invalidate a will under several circumstances as outlined below.

Statutory Requirements

One ground to challenge a will is if it does not abide by statutory regulations. A will is invalid if it was created in a way contrary to the legal requirements and the document is not appropriately signed or witnessed.

Will can be invalid because of Fraud, Forgery or Undue Influence

A will can be challenged and found to be invalid if it was procured through fraud or forgery. These types of cases are brought before the court when a testator has been misled into signing a will, or where the signature of the testator was forged.

A challenge can also be filed if there is evidence that the testator was unduly influenced to create the will in a specific way. It can be difficult to substantiate this claim as the testator will not be present to give evidence of the excessive influence. There must be compelling evidence to rebut the assumption that there has not been undue influence.

A will can be invalid because of lack of Testamentary Capacity

A will can also be challenged on the ground that the testator lacked the required testamentary capacity to create a valid will. A testator who suffers from mental illness or senility may not have the required cognitive capacity to determine how their deceased estate should be distributed. It should be noted that old age or illness is not in and of itself evidence of inability to make a valid will. Instead, it is necessary to demonstrate that the testator did not comprehend the consequences of their actions in making a will.

The courts use the test from Banks v Goodfellow to assess a testator’s capacity. The court will evaluate whether the testator is affected by a mental disorder that influences their thinking about the disposal of their assets. The testator must understand:

  • the import of creating a will and its effects;
  • the scope of their assets contained in their estate;
  • who has a moral claim to their estate.

Who Can Challenge A Will In NSW?

In New South Wales, only those with an “interest” in the deceased estate can challenge the validity of the will. This typically includes anyone named in the currently will or who would have benefited from a previous will, or someone who would be entitled to inherit under intestacy laws.

Probate Caveats

An essential first step for anyone who intends to challenge the validity of a will is to file a probate caveat with the Probate Registry of the Supreme Court of NSW. This caveat serves as notice that there is a question as to the validity of the will, and that the court should delay granting probate. The caveator needs to then file a notice with the court with evidence to support their challenge of the will. The executor of the estate responds with a Statement of Claim establishing the validity of the will, and the caveator has a chance to rebut this xlaim with a defence.

The court will then hold a hearing where the executor of the estate will speak on behalf of the will and the caveator will present evidence that the will is not valid. If the court is convinced of the will’s validity, they will set the caveat aside and grant probate of the will. Alternatively, if the court finds that the challenge is warranted, they can invalidate the will, in which case a previous will may be probated, or the estate declared intestate.

Challenging A Probated Will

It is a more straightforward process to challenge a will before it is probated, but it is still possible to dispute the validity of a will after that process has occurred. An eligible person can apply to the court to ask that the Grant of Probate is revoked and that the will is declared invalid.

What Happens If A Will Is Not Valid?

In the event that the court finds a will is not valid, then it will make an order as to what should happen to the deceased estate. If the deceased has an earlier will that can be validated, then the court will grant probate for the previous will. Alternatively, if there is no earlier will, the estate will be declared intestate, and be administered according to NSW intestate succession law. In NSW, the next of kin such as a spouse or de facto partner typically inherits from an intestate estate.

If you have cause to question the validity of a will, our contested wills team can help you file a probate caveat and challenge a will in the Supreme Court. The solicitors at Armstrong Legal have a wealth of experience in this field of law and are ready to assist you. Please get in touch with our offices or phone 1300 038 223 to talk over the particulars of your case.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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