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Disputing a Will (NSW)

In New South Wales, disputing a will is the act of legally challenging or contesting a will. Under the Succession Act 2006, a challenge may be lodged against the validity of a will, and a contest may be filed if someone believes the terms of the will are not fair. Disputing a will in New South Wales can be stressful, time-consuming and expensive, but it is sometimes the only way to ensure that there is a fair outcome for all parties. This article examines the procedure for disputing a will in New South Wales and focuses on key issues that relate to this type of legal action.

Challenging a will

One way of disputing a will is by challenging the validity of the will. A will may be challenged at any time: there is no time limit. The first step towards challenging a will is to contact the Supreme Court of New South Wales to find out if Probate has already been granted. If it has not already been granted, it is best to file a Probate caveat, which will prevent Probate being granted until the parties reach an agreement or the court makes an order.

To challenge a will, a Statement of Claim (and responding Defence to the Claim) are filed with the court along with evidentiary affidavits supporting the different claims.

When disputing a will on the basis that the document is not validly drawn, the court may declare the document invalid. A will must conform to certain formalities, including being a written document (neatly handwritten or typed) that is free from confusing corrections and erasures. It is essential that the will clearly express the final wishes of the testator (the person making the will). It is also vital that the testator signs the will, and that two suitable people act as witnesses. The witnesses must attach their own signatures to the document in the presence of the testator. The rationale behind having the testator’s signature witnessed is to confirm that the testator signed the will voluntarily and was of sound mind at the time. It is essential that a selected witness be free from conflicts of interest, so they cannot be a spouse of the testator or a beneficiary of the will.

If any of these legal formalities are not observed, the will may be challenged in the Supreme Court of New South Wales. However, it is important to take note that the court may choose to uphold the validity of the will even when the document is not perfectly executed. It is more likely that the court would invalidate a will that is fraudulent or a forgery, or where it can be proven that the testator was unduly influenced or incapable of writing a will at the time.

When disputing a will on the basis of testamentary capacity, the challenge must be supported by medical evidence. A challenge on the basis of mental incapacity must prove that the testator was suffering from mental illness or senility, or another disorder that temporarily or permanently impaired their cognitive functions; or that the testator was under the influence of alcohol or drugs at the time that the will was written.

If there is convincing evidence that the deceased lacked testamentary capacity, then the court will refer to a previous will to ascertain the testator’s final wishes. Where there is no prior will, the estate must be distributed according to the rules of intestacy.

Who Can Challenge a Will?

There are a select number of “interested parties” who are able to challenge a will in New South Wales. Those with standing include any beneficiary of the current will and beneficiaries of any prior will of the testator. The other category of people eligible to challenge the validity of a will is anyone who might inherit if the estate was intestate (if the deceased died without a will). In New South Wales, this includes the de facto partner or spouse of the testator, any financial dependent, and any close relative.

Disputing a Will in New South Wales: Contesting the Provisions

Another way of disputing a will is by challenging the provisions of the will. A valid will can be disputed on the grounds that its terms are unjust. The law in New South Wales dictates that if a testator has adequate resources, they have a moral responsibility to make reasonable provision for their dependents. A Family Provision Claim may be made within twelve months of the death of the testator, claiming that the deceased did not make reasonable provision. The question at the heart of such cases is what a “reasonably minded testator” would do in the same circumstances. The court will assess the relationship between the testator and the person disputing the will, and the financial needs of all the beneficiaries. If the court decides that a beneficiary deserves a greater share of the estate, they can order a redistribution of the assets of the testator. The court may even decide to order provision for someone who was not a beneficiary of the current will. For example, if a parent does not mention their child in their will, the child may be able to successfully contest the will claiming that their parent was morally responsible to provide for their financial needs.

Disputing a Will in New South Wales: Who Can Contest a Will?

Under New South Wales law, the only people who are eligible to contest a will are a spouse or de facto partner of the deceased, a former spouse, biological or adopted child, or anyone in a close personal relationship with the deceased who lived with them at the time of their death. The final type of eligible person is anyone who was partially or wholly financially dependent on the testator, including stepchildren and grandchildren who can prove that they received regular economic support from the deceased.

Disputing a Will in New South Wales: Next Steps

If you would like to discuss disputing a will in New South Wales through challenge or contest, please contact our experienced Armstrong Legal wills and estates team on 1300 038 223 or send a message to make an appointment.

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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