Constesting A Will

Constesting A Will

Contesting a Will

Contesting a Will is becoming more prevalent; complex family dynamics, relationship breakdowns, and increased wealth, are giving rise to disputes on death.

Can a Will be contested?

Yes, the succession laws in Australia allow for someone to contest a Will based on:

  • the validity of the Will; or
  • inadequate provision from the deceased’s estate.

When is a Will invalid?

A person must have mental capacity when making a Will, and they generally must meet the requirements of the case Banks v Goodfellow (1870) 5QB 549. The general test is the person needs to know and understand:

  • the effects of making a Will;
  • the extent of their assets;
  • the nature of any claims that may be made against them.

If the person does not know and understand the above, the Will may not be valid.

A Will may also be invalid because:

  • the actual intentions of the deceased are not reflected in the Will;
  • the deceased did not know and approve of its contents;
  • a person had undue influence over the deceased when making their Will; or
  • the deceased was misled or has been the subject of fraud.

What is inadequate provision from an estate?

Determining whether ‘inadequate provision’ has been made from an estate requires an understanding of the Succession Act 2006 NSW, and the pathway to eligibility.

Generally, the Court will assess the relationship between the deceased and the person claiming, as well as the future needs of both the person claiming, and any beneficiaries of the estate, as compared against the size of the estate. There is no one size fits all.

Who can challenge the validity of a Will?

Any person with an interest in a deceased estate can challenge the Will if they believe it is not valid. This can include:

  • a beneficiary named in a previous Will;
  • a beneficiary named in the current Will;
  • someone who would otherwise be entitled if the deceased had died without a Will.

Who can bring a claim for inadequate provision?

The Succession Act 2006 NSW sets out who is an ‘eligible person’ to make such an application to the Court. An eligible person of the deceased may include:

  • a spouse, de facto, former spouse and former de facto;
  • a child or step-child;
  • grandchildren;
  • a parent; or
  • other dependents and carers.

How long do I have to contest the validity of a Will?

Although there isn’t a strict time limit, it may be more difficult to contest the validity of a Will once probate has been granted by the Court. Seeking specialist advice is recommended as soon as becoming aware of a potential challenge to the validity of a Will.

How long do I have to bring a claim for inadequate provision?

In NSW, someone has 12 months from the date of death to issue proceedings based on inadequate provision. Beyond this, leave of the Court will be required.

To speak with one of our experienced Wills and Estates Team contact Solari and Stock on 8525 2700, or click here to request an appointment.

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Article written by Rebecca Exley
Image Photo by Bookblock on Unsplash