Contesting a Will Solicitors Sydney, NSW: The Complete Guide to Challenging a Will

A contest to a Will is a formal, legal objection or challenge to the validity of a person’s Will, raised by an interested party, on the basis that:

• The Will is not an accurate reflection of the person making the Will’s true intentions. (The person making the Will is known as the ‘testator’); or that

• The will is grossly unfair, excludes those who were dependent on the deceased or someone who should have been provided for is excluded from inheriting.

In general in New South Wales (NSW), the fact that a will is simply unfair will not be sufficient grounds on which to mount a challenge to its validity. Contests to Wills usually proceed on the basis that the person making the Will was not acting freely at the time of making their Will, for one reason or another. The most common reasons for this assertion are that the testator was acting under undue influence or was the victim of fraud, that they lacked the necessary capacity (‘testamentary capacity’) or that they (permanently or temporarily) lacked the mental faculties necessary to write a valid Will. A Will can also be contested if it is believed that the Will is a forgery.

Taking the example above of the dishonest lawyer, if the underhanded attorney in this example used his position of trust to persuade a client to leave an expensive painting to her and not, say, a favoured grandchild who had been promised the painting, then the disinherited grandchild would have standing to contest the Will.

If you feel you have been left out of a Will, you need to consult a Succession Act lawyer quickly. In NSW, the time limit on challenging a Will has changed recently you must contest a Will within 12 months of the date that the Will-maker passed away.

A person making a Will (the 'testator') has the right to distribute their estate as they see fit. However, there is legislation in place in NSW to protect those who feel the deceased had a 'moral responsibility' to provide for them. It is possible to contest a Will when you feel the deceased has failed in meeting this responsibility when making their Will.

Social changes in recent years have seen increasing numbers of people with more complicated family structures (e.g. subsequent marriages). Under the Succession Act 2006 in NSW, contesting a Will is not limited to spouses and children - friends or relatives who believe they have not been sufficiently provided for are also entitled to contest a Will.

This includes former spouses, de-facto partners, same-sex partners and any other dependants (wholly or partly dependent) including grandchildren and those living in a close personal relationship with the deceased. In order to be successful with a Will dispute, you will need to prove to the Court that adequate provisions were not made for your maintenance, education or advancement in life.

The criteria used by the Court in NSW to assess your rights when contesting a Will include:

• Is the Will 'grossly unfair'?

• Have you been left out of the Will when you should have been provided for?

• Were the testator's intentions clear? Did the testator have the mental capacity to understand what he/she was doing?

• Have you been excluded from the Will when you were either partially or fully dependant on the deceased?

The total cost of a contested Will claim depends on when the claim is resolved after a long drawn out application, which is decided by the Supreme Court, or by negotiation or mediation before the Will dispute reaches Court. As each case (and family) is different, once you have discussed the details with us we will have a much better idea about the legal costs involved to contest a Will.

Where possible, Will disputes are resolved through a settlement agreement or mediation. This prevents the matter going to Court and therefore reduces legal costs, brings earlier resolution and preserves family relationships.

In some instances, however, contesting a Will in Court cannot be avoided.

The answer is yes, you can challenge a Will in whole or in part. If necessary, an entire Will can be challenged, or only the part to which the person raising the challenge takes exception can be contested.

One of the most common situations which lead to the contesting of a Will arises when a person is in a relationship of trust (also known as a fiduciary relationship) with the testator and they have (apparently) abused this relationship to procure a benefit from the Will. Take for instance a case in which a person leaves a substantial amount in their Will to the Wills solicitor who assisted in drafting the Will. This is, on the face of it, a prime example of the exertion of undue influence over a testator.

Undue influence over a testator is defined as the use of persuasion, duress, pressure, force, coercion or fraudulent practices to the extent that the free Will of the person writing the Will is destroyed.

There are two general classes of person who have ‘standing’ (the necessary legal entitlement) to challenge a Will. These are:

• A Person or Persons named in the Will (the beneficiary/beneficiaries).

• Anyone who would stand to inherit if the Will was indeed invalid. That is to say, persons who have been ‘disinherited’ or excluded from inheriting.

More specifically, the persons who can challenge a will are as follows:

• Spouses

• Former Spouses

• ‘De Facto’ partners – De facto partners are partners who were living with the deceased when they passed away, in a manner similar to that of husband and wife. This includes those in same-sex relationships.

• Children, including adult children, those under 18 and adopted children. Step children are eligible to contest the will if they were dependent on the testator.

• Grandchildren, as long as they were at least partially dependent on the deceased are eligible to contest a will.

• Members of the deceased’s household who were wholly or partly dependent on the deceased. This includes those in ‘close personal relationships’ with the deceased.

• Parents. If dependant on the deceased, a parent may be able to contest a will.

The answer is yes, which is why it is important to act quickly and instruct a solicitor as soon as possible. If the testator died after the first of March 2009, you have 12 months from the date of death to raise a Will dispute claim.

On the other hand, if the person passed away before the first of March 2009, you had 18 months from the date of death to raise a claim.

All is not lost however, as you may still be able to make a claim. There are certain situations in which you may be able to contest a Will regardless. If you did not know the person had died, or you received threats (and can prove that you received threats) then the court can set aside the time limit. It’s very important to act quickly however, as any further delay may jeopardise your claim.

If the date of death is uncertain, the court will determine a reasonable date.

If you are successful in contesting a will, the court will ‘set aside’ the Will. This has the legal effect of making it as though the will has never existed. None of the provisions will be applied and the estate will be distributed according to the second-to-last will, if on exists. If no other will exists or can be found, the laws of ‘intestate succession’ apply (Intestacy is the state of having died without a will). The laws of intestate succession mandate how an estate is to be divided and provision is made for certain relatives and dependants, regardless of the wishes of the deceased.

While it’s easier to challenge a will before probate is granted, it is possible to raise a challenge after the grant of probate. In this case, you will have to explain to the court why the challenge was not made at an earlier date and satisfy them of the validity of the grounds upon which you found your challenge.

You cannot challenge a will simply because you do not like its contents, or because you are aggrieved. A legal challenge to a will has to proceed on a ground recognised by law.

The grounds for contesting a Will in NSW (similar to other jurisdictions) are as follows:

The Will is 'Grossly Unfair'

If the will is considered to be grossly unfair then you may be able to successfully challenge the will. Other relevant considerations are whether you have been excluded from the will when you were dependent on the deceased or where you should have been someone who should have inherited. As noted above, the court will not accept mere unfairness; gross unfairness is required before a successful challenge can be brought against the will. It’s important to note that no two cases are identical and the court will bear in mind a range of relevant factors. Our solicitors are experts in this area, helping clients from Sydney, across NSW and indeed from foreign countries, and can provide you with clear legal advice as to whether or not the will has been grossly unfair.

Lack of Testamentary Capacity.

These claims are based on the assertion that the person writing the Will lacked the necessary mental capacity to understand the ramifications of writing a Will, or that they were not in control of their faculties. It is important to note that in New South Wales, those under the age of 18 years are deemed to lack the necessary capacity. Therefore, any Will or document of testamentary nature made by a child in NSW is invalid. To put this another way, in order to write a valid Will, you must be have reached the age of majority, be of sound mind and capable of understanding what you are doing. A testator must be capable of understanding the amount, value and nature of their property and identifying the family members who would ordinarily inherit.

It’s important to note, however, that a mental illness or other disease (i.e. one which impairs mental function) does not automatically mean that the testator lacks the requisite mental capacity. Proving lack of mental capacity in court when challenging a Will is usually done by way of medical records or by the testimony of those who observed the testator at the time of making the Will.

In order to successfully challenge a will on the basis of lack of testamentary capacity, the person raising the challenge must be able to show:-

That the testator suffered from senility or mental illness, or a medical condition which impaired their mental capacity (this may only have been temporary in effect); and

That the testator was not under the influence of drugs or alcohol at the time of writing their will.

However, simply the fact that the testator is either ill or very elderly will not, in and of itself, amount to a lack of testamentary capacity.

The person raising the challenge must also satisfy the court that the person making the will did not, at the time of its writing, understand:

• The true value and extent of their estate;

• Who they were expected to provide for and the consequences of including/excluding various people from their will;

• How their estate and property was to be distributed; and

• That they were making a Will, or the effect of making a Will.

Duress, Fraud & Undue Influence.

If it is believed that the testator was not acting of their own free will when writing their Will, then the will can be challenged. Taking each in turn:

Duress

Duress is coercion which usually involves the treat of some physical harm visited upon the testator by the person seeking to acquire a benefit from the Will.

Fraud

Fraud in the context of Wills disputes is the making of representations, which the perpetrator knows to be false, to the testator with the intent of misleading the testator into acting upon these representations. Will Fraud is, essentially, the distortion or obfuscation of the truth to procure a benefit. The making of false statements or hiding relevant, material facts from the testator are examples of fraud.

In the context of Wills, fraud commonly takes two forms:

• 'Fraud in the execution of the will' occurs then the testator is induced into signing a document he believes is something other than a Will (for instance a power of attorney or other deed.)

• 'Fraud in the inducement' occurs when the testator is made to believe in the existence of a fact (or set of facts) which induce him into make a Will which is different from the one he or she may otherwise have made.

Undue Influence

Undue influence involves a trusted friend, relative, caregiver or confidante (for instance a lawyer) using their relationship of trust with the testator to influence how the testator writes their Will. Normally, the perpetrator is in a close relationship with the testator, and stands to gain from assisting the testator in drafting their Will. Often in these cases, the burden of proof shifts to the influencer to show that they did not use pressure, threats, force or other underhanded means in procuring a will which was to their benefit.

If a Will is challenged on the grounds of undue influence, the Court will not automatically invalidate a Will if the benefit has been acquired merely by flattery and persuasion. The key factor is that the testator’s thinking must have been influenced to the point that the Will is not a true and accurate reflection of their intentions.

By way of example, an estranged nephew taking a sudden interest in the wellbeing of a wealthy aunt in her twilight years will not automatically have unduly influenced her, unless there has been some pressure or force exerted. A claim for undue influence will only succeed if it can be proven that the nephew coerced his elderly aunt into acting in a way she would not otherwise have acted. His new-found influence on his aunt must overbear her own free will.

Forgery is perhaps a unique ground of challenge compared with those above, as the deceased “testator” may never, in fact, have written a Will. Either the Will was written by a person other than the deceased, or a drafted Will was signed by a person other than the actual testator. Both of these invalidate the will in its entirety.

Forgeries are commonly the result of a family member writing a Will on the deceased’s behalf (often their own advantage) or the result of the deceased having been targeted by criminal fraudsters.

If you wish to challenge a will on the basis that you believe it is forged, it is up to you to provide evidence which supports your claim. There is a presumption in law that the Will is valid.

If it is believed that a will is a forgery, then any successful challenge will invalidate the entire Will. One unfortunate side-effect of this can be that the forger inherits regardless, albeit less than they perhaps stood to. This occurs when the forger is a family member who stands to inherit by virtue of their familial relationship with the deceased – If a will is forged, the law regards the will as never having existed. As such, the laws of intestacy apply.

No-one really wants to go to court, unless they absolutely have to. Increasingly, the law recognises this and provides for alternative means of dispute resolution. Typically, in family cases, this involves negotiating with the other side, and perhaps mediation for contested wills claims, if necessary.

Increasingly large numbers of contested Wills claims are settled by way of negotiation. This removes the need for court proceedings and usually results in a quicker, cheaper resolution. On the upside, claims which resolve by way of negotiation are usually quicker and cheaper, however on the downside, there is no obligation on any party to negotiate, nor is there an obligation on the executor of the estate to disclose the full value of the estate – as such, you may settle for less than you are entitled to.

Raise or settle your contested Wills claim in NSW

To start or settle your contested Wills claim in NSW, call our solicitors on 02 9281 5088 or book a consultation.

Many contested Wills claims proceed from informal negotiation to the more formal setting of a mediation. While less formal than Court proper, mediation is still a structured process with binding outcomes.

Mediation involves both parties witting with a trained mediator. This mediator assists the parties to come to a resolution, without involving the court. The court can order parties to the dispute to attend mediation.

During mediation, unlike negotiation, the executor of the estate is obliged to provide the person bringing the claim with a list of the assets comprising the estate, as well as information in relation to the value of the estate, and each individual item. This gives claimants the advantage of knowing how much their claim is likely to be worth at best, and gives them an indication of an appropriate settlement.

Mediation has a number of advantages:-

• Mediation allows parties greater flexibility to come to their own agreement;

• Mediation is private (unlike going to court which is in essence public);

• The outcome of a mediation is still final and puts an end to the contested wills dispute.

Mediation for contested Wills claims in Sydney and NSW

If you are considering challenging a will, speak to our solicitors today: call 02 9281 5088 or book a consultation.

A family provision claim is an application made to the court under the Succession Act 2006 to seek provision out of the estate of a deceased person. Under Australian law, we are obliged to care for our dependants, even after we are gone. In practice, this means that we are to provide adequately for their needs in our will. If you feel you have been unfairly treated in a loved one’s Will, or you have not been adequately provided for, you can make a Family Provision Claim against their estate.

While the death of a loved one can be a difficult time, it’s important to remember that such claims have a time limit. The time limit is 12 months from the date of death. However, this is waived in certain situations. If the court is satisfied that there is ‘sufficient cause’ to extend the period they can do so, although this is rare.

Under the previous Family Provisions Act 1982 legislation, a person had eighteen (18) months from the date of death to lodge a claim. The new Succession Act 2006 amendments reduce this period to twelve (12) months. This time limit cannot be extended, even by consent between the parties, although the court can choose to extend the period if "sufficient cause is shown". The court rarely makes this decision so it is advised that all Family Provision claims are lodged within twelve months.

See also our guide: Family Provision Claims Lawyers Sydney NSW: Carer or de facto partner legal update: Lessons from Sun v Chapman (2022)

The Succession act 2006 sets out who is entitled to make a claim. People who are eligible include:

• Spouses and former spouses, including ‘de facto’ spouses and same-sex partners.

• Children, including children borne of de facto relationships.

• Grandchildren who were wholly or partly dependant on the deceased.

• Anyone who was wholly or partly dependant on the deceased.

• Anyone in a ‘close personal relationship’ with the deceased at the time of their death.

If you are eligible, the Court will look at whether or not adequate provision has been made in the deceased’s will. If the Court is satisfied that you have been treated unfairly, then an ‘order for provision’ is made. This will set out what the court deems an adequate provision in the circumstances, taking into account several factors, including the size of the estate.

As well as the size of the estate, the court will take into account:

• The financial situation of the person bringing the claim, as well as that of their spouse. This will include an assessment of the relative earning capacity of both.

• The financial situation of other beneficiaries to the estate (as they may stand to lose out should an order be made).

• The claimant’s relationship with the deceased, including their financial relationship. For instance, debts will be taken into account.

• The extent to which the claimant supported the deceased in acquiring, conserving or improving their estate.

• The extent to which the claimant contributed to the personal welfare of the deceased.

• What provision, if any, has already been made to the deceased (gifts, loans etc)

• The claimant’s character will be assessed, and previous convictions may be taken into account. The conduct and character of other beneficiaries may be similarly assessed.

• Evidence, if any exists, of the deceased’s true intentions as to how their estate be distributed.

Obviously, given the exacting nature of the criteria to be assessed, claims for Family Provision in NSW can be difficult, and involve the disclosure of a large amount of private information. If you are considering this approach or if you are confused about which option is best for you, speak to our solicitors today: call 02 9281 5088 or book a consultation..