Contesting a Will in NSW: Key Provisions & Considerations

Probating a will can be a very difficult experience, particularly if a non-beneficiary or an actual beneficiary decides to contest the contents and/or the distributions in the Will. When this happens, it often causes great stress, significant arguments, and legal fees for all parties involved.

Unless proven otherwise, the court will most likely find that a Will made by a deceased person who had the capacity and clarity of mind to understand their actions, will have distributed their assets as they saw fit. However, before a Will can be contested it must be determined if the Will was valid to begin with. If the Will was not valid to begin with, then the assets will be distributed according to the intestacy laws. For a Will to be valid the following provisions must be met:

1. It must have been authored by the deceased
2. At the time the deceased created the Will they must have been of sound mind
3. The Will must have been created within the confines of the law and all legal requirements
4. If there were any alterations to the Will after it was executed, including codicils
5. The deceased must have created the Will of their own free choice

However, there are circumstances that can prove a Will to be invalid or in need of alteration. Those circumstances include:

• Undue Influence: In the event that the contester of the Will can show that the deceased created the Will as a result of being unduly influenced by another, the will can be found invalid. For this to be proved the contester must show that the Testator was threatened or pressured or somehow forced to create the distributions in the manner that they did.
• Fraud: For fraud to be proven the contester must prove that the deceased was tricked into signing the Will. For example, if the Testator was told the document they were signing was something other than their Will, but was, in fact, a Will.
• Forgery: If the deceased signature was placed on the document by someone other than the deceased.
• Lack of Capacity: The contester must prove that at the time of the making of the Will, the Testator lacked the mental clarity to understand the distribution of the assets and/or the awareness that they were signing their Will. Such circumstances can include diagnosis of senility or Alzheimer’s disease, intoxication, mental incapacity due to the use of drugs, or an illness that prevented the Testator’s ability to think and act clearly.

It must be remembered that not everyone retains the right to contest a Will. There are only certain people and particular relationships that allow for a Will to be contested. Those people and relationships include the following;

• Parties contesting must be within the definition of the Succession Act of 2006.  
• The Act does not limit parties to spouses and children
  • • De facto spouses
  • • Grandchildren
  • • Other family members
    • Friends or other dependents who may have lived with, and depended upon, the deceased

In all of these cases, the person contesting the will must be able to show that they were not adequately provided for by the Testator for their maintenance, education or advancement in life

If you are considering contesting a Will of a deceased family member, you must keep in mind the following issues;

1. There is a 12-month time limit for which a Will can be contested.
2. There will be a cost for contesting a Will. The legal fees could be directed to be paid by the losing party to the winning party, however, this is not always the case. In addition, it is also possible that the fees directed to be paid will not cover the entire cost of the legal fees incurred.
3. Even upon winning the contesting of a Will the distribution is not automatic in the amount or the manner in which the disgruntled party requests. Instead, if there is a prior valid Will, that document will be reviewed and taken into consideration. If there is no prior valid will and the current will is also invalid, then the distribution of assets will be made in accordance with the intestate laws.

While it is always best to honour the wishes of the deceased, there may be times when contesting a Will is necessary. Under these circumstances, it is wise to have the guidance of a legal professional.

If you or a loved one is experiencing an issue with probating the Will of a family member or friend, and need assistance, please do not hesitate to contact the law offices of Owen Hodge. Give us a call at your earliest convenience on 1800 770 780 to schedule a consultation with one of the will dispute lawyers Sydney residents rely on.