Regardless of whether you are making a Family Provision Claim or challenging the validity of a Will, contesting a Will can be difficult. Aside from any complexity in the matter, you also need to consider how your actions may prejudice other beneficiaries and how contesting the Will could affect family relationships. This could either be by delaying the distribution of the estate to all beneficiaries, or through costs relating to the matter being paid from the estate. Which is why you should have a clear understanding of the grounds you need to contest a Will before taking any steps.
Viewing the Will
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. This means 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. To do this, you need to be able to view the Will. As per 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.
Claiming a Lack of Adequate Provision
Eligible persons—as defined by the Succession Act 2006 (NSW)—can make a Family Provision Claim if they think 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.
There are several factors the court will look at before making a decision, including the size of the estate, your relationship with the deceased person, and your own personal circumstances. Fairness is not a factor.
Claiming the 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 does not consider the deceased’s mental capacity at the time of their death, only at the time that the last Will was drawn up.
- 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 being 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. Persons 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 claims against the estate under NSW intestacy rules.
Because contesting a Will can delay the administration and distribution of the estate, and along with the strain it can place 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. This will assist in properly determining whether you are eligible for contesting the Will and that the next steps are carried out properly. Whether this is preparing for mediation or gathering evidence before approaching the court.