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Challenging a Will in NSW

Challenging a Will in NSW & Family Provision Claims

A person may question the validity of a Will or make an application challenging a Will in NSW. Such can be done under Chapter 3 Family Provision of the Succession Act 2006. In which case, legal advice will be required.

Is the Will Valid?

It may be claimed that a Will presented for probate was not intended to be the person’s final Will on the grounds that:

  • It was not the last Will made by the person.
  • The person lacked the mental capacity to make it.
  • It was altered after it was signed.
  • The person was unduly influenced or tricked.
  • It had been revoked.
  • It was not properly executed or was not in proper form or substance, or lacked clear testamentary intention by the person who made the Will.
Undue Influence

The Supreme Court of NSW will overturn a Will on the grounds of undue influence. In estate planning, undue influence is when the Will maker has been coerced to such an extent that the resulting Will is contrary to their real intentions. However, a person claiming such must prove the fact with full details and supporting evidence.

Flattery and persuasion by someone who stands to gain from the Will is not unlawful as such. However, the courts may be suspicious if there has been obvious persuasion by the person who drew up the Will. Suspicion may arise particularly if that person would benefit from the Will.

Is the Will clear?

If the Will is unclear, the executor or a party interested in the estate may apply to have the court determine what was meant. For example, if there were beneficiaries with the same name and the Will does not clearly distinguish who was the beneficiary.

The rectification power under the Succession Act Section 27 gives the Court the power to rectify the Will. This happens if the way it is expressed fails to carry out the Will maker’s intentions. In addition, the Court may rectify a Will if a clerical error mas made in the drafting of the Will.

Additionally, if the language of the Will makes any part meaningless or ambiguous, Section 32 allows limited evidence to construe Wills. Evidence, including the Will maker’s intentions, is admitted in a Court hearing to determine the true construction of the Will.

However, the court will not accept evidence of the direct intention of the deceased. For example, evidence of a statement that the deceased told someone they would receive a certain gift. Instead, only the fact that the beneficiary had a certain relationship with the deceased would be accepted by the court.

an image of several people who turn out to be siblings and shaking hands after a fight, before challenging a will in NSW

Who is entitled to see the Will?

Section 54, a new provision of the Act, lists the categories of people now entitled to look at the Will and be provided with a copy (at their cost). The list includes:

  • Anyone named in the Will.
  • Anyone named as a beneficiary in an earlier Will.
  • The surviving spouse or de facto partner or issue of the deceased.

Previously the executor could refuse to provide a copy of the Will. Moreover, it could only be obtained from the registry after probate was granted.

How do I challenge a Will?

To challenge or contest a Will generally means to make a claim for provision or further provision out of the estate of the deceased. The claim is otherwise known as a “family provision claim.”

Family provision claims must be made within 12 months from the deceased’s date of death. However, if there are extenuating circumstance, you may apply out of time. Moreover, if the 12-month time limit has lapsed, proceedings should be commenced as soon as possible—without delay.

Family Provision claim

To make a family provision claim in NSW, a person must be eligible in accordance with Section 57 (1) of the Act. This includes:

  • A person that was married to the deceased at the time of their death and otherwise referred to as a spouse.
  • A person who was living in a de facto relationship with the deceased at the time of their death, including those people in a same sex relationship.
  • A child of the deceased person. This also includes those children who were adopted by the deceased at any time during that child’s lifetime.
  • A former spouse such as an ex-wife or ex-husband of the deceased.
  • A grandchild of the deceased who was also wholly or partly dependant on the deceased person at any time during the deceased’s lifetime.
  • A person who lived with and was wholly or partly dependant on the deceased person at any time during the deceased’s lifetime.
  • A person who was living with the deceased at the time of their death and was either providing the deceased with domestic support and personal care and/or the deceased was providing them with domestic support and personal care, without payment or reward or on behalf of another person or organisation.

You will need to see an experienced lawyer who can assist with starting the process.

an image of a grandfather and his grandson while in a video call with other family members who will start challenging a will in NSW

Need help with your Estate Planning?

AussieLegal offers a range of affordable legal kits and paralegal services aimed to help you complete your estate planning. This includes three different Will preparation options to ensure your final wishes are carefully considered. Moreover, our Will preparation services can help you reduce the risk of someone challenging your Will in NSW:

  • DIY Will, which enables you to write your own Will by yourself,
  • Legal Will, wherein your Will is prepared by one of our experienced in-house paralegals, and
  • Legal Will Plus, a lawyer-assisted fixed-fee service which includes advice from an estate planning lawyer. 

 

Call us on 1300 728 200 to discuss your situation with one of our consultants.

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