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.
It may be claimed that a Will presented for probate was not intended to be the person’s final Will on the grounds that:
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.
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.
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:
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.
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.
To make a family provision claim in NSW, a person must be eligible in accordance with Section 57 (1) of the Act. This includes:
You will need to see an experienced lawyer who can assist with starting the process.
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:
Call us on 1300 728 200 to discuss your situation with one of our consultants.
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