Introduction

Nowadays, when you hear or read about people commencing (or wanting to commence) legal proceedings against a deceased’s person Estate, they sometimes refer to it as “contesting the will” or “challenging the will”. These two are used interchangeably but caution must be exercised as they do not have the same meaning and they relate to different legal proceedings.

In this article, we will examine the differences and what it actually means to “contest the will” or “challenge the will” in New South Wales.

What does it mean to “contest the will”

“Contesting the Will” is sometimes also referred to a “family provision claim” and it occurs when a person (referred to as the claimant) does not dispute the formation or the validity of the deceased person’s will but rather, is of the view that he/she received only a small portion or that they have been unfairly left out of the deceased person’s will.

If this scenario applies, we recommend that you read the following article.

What does it mean to “challenge the will”

This situation occurs when a person has reasons to suspect that the deceased person’s will is not valid from a legal perspective. This situation can apply in several circumstances but often, they are as follows:

1. the person who made the will (Testator) did not have testamentary capacity at the time of making the will.
2. the Testator was subjected to undue influence at the time of making the will.
3. there is fraud or some other form of forgery associated with the contents of the will.
4. the Testator did not know and therefore could not approve the contents of the will.
5. the will does not follow the legal requirements as required by the Succession Act 2006 (NSW).

The Testator did not have testamentary capacity when the will was made

If it is found that the Testator lacked testamentary (mental) capacity at the time the will was made, the will is deemed to be invalid.

The test for testamentary capacity was set out by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549. This test has been considered and applied in multiple cases around Australia. All elements have to be established and they are as follows:

1. whether the Testator have the capacity to understand the nature of the act of making a will and its effects; and
2. whether the Testator had an understanding of the extent of the property of the will; and
3. whether the Testator had the ability to understand and assess their moral obligations towards family and understand who may have any claims against their estate; and
4. whether the Testator was affected by a disorder of the mind which had it not been present, the Testator would not have made the will being challenged.

The Testator was subjected to undue influence at the time of making the will

If it is found that the Testator made the will whilst being under undue influence, the Court may declare the will to be invalid.

Undue influence is established when there is evidence to suggest that the Testator was put under pressure by another person to write the will in a way which does not reflect the Testator’s actual intentions. Examples of pressure could include psychological threat, physical threat, deception, blackmail and coercion.

Generally, persuasion will not be considered enough to establish undue influence.

There is fraud or some other form of forgery

If there is evidence to suggest that fraud was committed and it had a direct effect on the making of the Testator’s will, the will is deemed to be invalid. An example of this scenario would include a situation where a beneficiary committed fraud for the sole purposes of receiving a benefit under the will.

A similar outcome applies in situations where it is found that the Testator’s will is a result of forgery. Examples would include instances where the will was not made by the Testator or was not signed by the Testator.

The Testator did not know and therefore could not approve the contents of the will

Examples of this scenario would include situations where a beneficiary played an important role in the preparation of the will, the Testator signed the will without reading it or the Testator executed a will in a language which the Testator did not have good control over.

Care should be exercised in this regard because unless there is evidence to suggest the contrary, when a Testator leaves a will, it is presumed that they knew and approved the contents of the said will.

The will does not follow the legal requirements

Under the Succession Act 2006 (NSW) a will is not considered to follow the legal requirements unless the will:

1. is in writing and signed by the Testator or some other person in the presence of and at the direction of the Testator; and
2. the Testator signs the will in the presence of at least two witnesses (who ideally are not beneficiaries); and
3. those witnesses also sign the will in the presence of the Testator.

If the legal requirements are not established, it does not necessarily invalidate the will as the Court has powers to dispense with the legal requirements if there is evidence adduced before it which warrants the making of any such orders.

Who can “challenge the will”

Only persons that have standing or the right to challenge the validity of will. The persons include:

1. a beneficiary in the Testator’s last will;
2. any person who would stand to inherit if the Testator died intestacy, in other words, died without leaving a will: spouses, de-facto partners, children, grandchildren, siblings, nephews and nieces, parents, grandparents, uncles, aunts and first cousins.

How do you “challenge a will”

Initially, steps have to be taken to ascertain whether or not Probate has been granted in respect the Testator’s will. This information can be derived personally by enquiring directly with the Registry at the Supreme Court of New South Wales. Your solicitor can also make these enquiries on your behalf in requested.

Regardless of whether or not Probate has been granted, a further step that can be taken is to lodge a Probate Caveat. Once this is filed, the Probate Registrar will not issue a grant of Probate unless:

1. the parties agree that the caveat can be removed which will allow the issue of a grant of Probate; or
2. the matter is determined by the Court.

Seek advice early

It is important that you seek advice early if you believe that there are circumstances which would entitle you to “challenge a will”.

Costin Stan at FCW Lawyers is a Contested Estates practitioner and is always willing to help you understand what your rights are and will always guide you to make the best decisions.