You may contest a loved one’s Will in New South Wales if you believe you have been left out or have not been sufficiently or fairly provided for in the Will. However, there are many things you should know before you begin proceedings or make your claim.

Firstly, in NSW a Will is usually challenged or contested on two main grounds. Namely, that the Testator’s Will should not stand since it is not valid, and the second ground is that a person feels they have been unfairly left out of the Will. If this is the case, you can apply for a NSW Family Provision Order.

In NSW there are time limits for contesting a will, so those eligible for a Family Provision Order or any other claim against a Will have one year in which to do so. Also, be aware that the court takes into account many areas when deciding on Family Provision Orders. The following guide may help you in your bid to contest a Will.

 

You’re in safe hands with PK Simpson. 

Seven out of 10 clients are referred by past or present clients.

During a case in which a Will is contested before or after Probate, we’re big on keeping our clients up to date and supported throughout a claim. 

 

Is it a Legally Valid Will?

If you go down the road of contesting a loved one’s Will, you firstly need to know whether it is a valid and legal Will. The court will consider the following questions when deciding on the validity of a Will:

  1. Is this the most recent Will?
  2. When making it, were legal requirements followed?
  3. In the above respect, was it written and signed by the Testator and were two non-beneficiaries present as witnesses?
  4. Did the Testator have testamentary capacity, i.e, were they mentally able to understand what they were signing?
  5. Was the Will altered at all since it was signed?
  6. Was the Testator put under pressure, duress or undue influence when the Will was written, or when signing the Will?

 

Your PK Simpson lawyer and secretary will look after you at all times and make sure you’re happy with the process involved in contesting a Will and the way forward.

 

Are There Any Suspicious Circumstances?

Despite evidence that the Testator did have testamentary capacity when making their Will, to be certain that the Testator knew exactly what the Will contained and that they approved of it, the court also considers how it was made.

If a lawyer prepared the Will, then in most cases it’s assumed the Testator knew what their Will contained and approved of its contents. In cases that appear suspect, the ones who claim the Will should be upheld have to prove the Testator knew what they were signing.

The following are examples of where the circumstances of a Will have excited the suspicion of the court would be grounds to a claim for Family Provision or for contesting a Will:

  • The Will was not prepared by the Testator but by someone else.
  • A child has been disinherited when no change in the relationship or any estrangement with the Testator has occurred.
  • There has been a sudden, dramatic and surprising change in the way the estate is divided.
  • There is suspicious behaviour or claims among beneficiaries towards those named  as beneficiaries in earlier Wills but have been disinherited in the last Will.

Family Provision Orders

A person can make a Family Provision claim even if a Will is deemed legally valid in NSW if they feel the Will did not inadequately provide for them. However, the claimant must  be listed as eligible under the Succession Act 2006 (NSW), Section 57, and they include the following:

  • The Testator’s children
  • The Testator’s spouse
  • The Testator’s de facto partner
  • Any former spouses of the Testator.
  • Any dependant of the Testator
  • Any person living in a close personal relationship with the Testator when they died

While not explicitly listed, siblings, parents, former de factos and stepchildren, could be deemed eligible if they were financially dependent and living with the Testator when they died.

Was There Undue Influence?

This area of the law is very difficult to prove but undue influence means the Testator was pressured to make their Will against their wishes or intentions. It usually happens when someone tries to force or influence the Testator into making them a beneficiary.

The hopeful benefactor may use various methods of getting their way, including deception, blackmail, trickery, flattery or intimidation. The coercion can take the form of violence, abduction or captivity. However, the accuser must prove that such incidents occurred.

Testamentary Capacity

Many people mistakenly assume that someone diagnosed with any of the forms of Dementia, a Will they make is automatically determined to be invalid. This is not true. There are four questions and areas the court will consider in their judgment.

  1. Did the Testator appreciate the significance of making the Will and were they fully aware of the procedure?
  2. Was the Testator aware of the value of their estate?
  3. Did the Testator know who could reasonably have a claim on their estate?
  4. The court then decides on the answers to the above if the Testator could differentiate between the validity of the claims made above.

Contesting a Will NSW: Costs

The cost of contesting a Will in NSW varies, depending on whether it is based on the Will’s validity, or you want to lodge a claim for Family Provision Order, the complexity of the case and whether you can settle out of court.

At PK Simpson lawyers we have a No WIn, No Fee policy and we don’t pick and choose which cases we take on. We make every attempt to keep costs at a minimum while pursuing every avenue available to prove your claim. If you have been left out of a Will, call us today on 1300 757 467, or email enquiries@pksimpson.com.au.