Whether you are making a family provision claim or challenging the validity of a will, contesting a will can be difficult. Beyond the legal complexity, you need to consider how your actions may prejudice other beneficiaries and how contesting the will could affect family relationships - either by delaying the distribution of the estate, or through costs relating to the matter being paid from the estate. That is why you should have a clear understanding of the grounds you need before taking any steps.
Can you view the will before contesting it?
Yes - certain people have the right to see the will. Under the Succession Act 2006 (NSW), specific people may ask to see - or receive copies of - the will before Probate is granted, at their own expense.
Although you have 12 months from the date of the deceased’s death to contest a will in NSW, it is better to start the process as soon as possible. That way the executor can be put on notice of the claim, which reduces the risk of the deceased’s assets being distributed to beneficiaries before the claim is dealt with.
What are the grounds for a family provision claim?
Eligible persons - as defined by the Succession Act 2006 (NSW) - can make a family provision claim if they believe they were unfairly excluded from the will, or that they were entitled to a larger portion of the estate. The court prefers these claims to be mediated and settled outside of court by agreement between the parties, but will consider the claim if mediation fails.
Before making a decision, the court looks at several factors, including the size of the estate, your relationship with the deceased person, and your own personal circumstances. Fairness is not a factor.
What are the grounds for claiming a will is invalid?
Aside from a will not meeting certain legal requirements, there are other grounds on which you can challenge the validity of a will. These include that:
- the deceased person lacked mental capacity at the time their last will was drawn up - the court considers the deceased’s capacity when the will was made, not at the time of their death
- the will was forged, or the signature on the will is a forgery
- the deceased person was under undue influence when drawing up their will - meaning they were coerced or intimidated into leaving certain assets to a specific beneficiary
- there is evidence of fraud, or another will has been found that might be more recent.
Challenging the validity of a will is more complex - and more serious - than making a family provision claim. The court expects the person challenging the validity to provide evidence supporting their claims. The people who may challenge the validity of a will are limited to:
- anyone named as a beneficiary in the current will
- anyone named as a beneficiary in previous wills
- anyone who would be entitled to claim against the estate under NSW intestacy rules.
Because contesting a will can delay the administration and distribution of the estate, and can place real strain on family relationships, the decision to contest should never be made in haste. Seek professional legal advice before making a family provision claim or challenging the validity of a will. That will help properly determine whether you are eligible, and make sure the next steps - whether preparing for mediation or gathering evidence before approaching the court - are carried out properly.
This is general information, not legal advice. Every situation is different - for advice on your matter, request an initial consultation. Enquiring is free. There is no consultation fee for wills, conveyancing, powers of attorney, deceased estates or contested estates - for other matters an initial consultation is $275.
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