Everything you need to know about challenging a will in NSW

Have you been left out of a will or received an inadequate amount? Turnbull Hill Lawyers can help you challenge the will. We understand that challenging a will during such a tough time can be stressful, which is why we aim to take the stress off your shoulders and make the entire will challenge process as smooth as possible.

Our team of Will Challenge Lawyers has been helping clients achieve favourable outcomes in challenged will cases since 1969. In the process we’ve developed a reputation for achieving favourable outcomes.

In our experience we’ve found that every will challenge case is vastly different and as such, we take time to understand your unique situation and then develop a tailored strategy to achieve a favourable outcome for you. We also appreciate that sometimes our clients don’t even know where to start when they begin the will challenge process. In these circumstances we always do our best to guide you through the process by explaining everything in plain English and keeping you informed every step of the way. We’ve developed this comprehensive list of frequently asked questions about wills to assist you in understanding your rights and obligations.

There are many different grounds to challenge a will. These include Family Provision, Trusts, Contracts, Undue Influence, Fraud, Forgery and a lack of Testamentary Mental Capacity; all of which are explained in detail below or on their own respective pages.

In most cases will challenges occur because people simply feel the testator (will maker) did not sufficiently provide for them in their will. Rest assured that when you are challenging a will our Contested Wills & Estates Team will identify which approach is most suited to your situation and advise you accordingly.

When you ‘Challenge a will’ you are challenging the validity of the document that is the will.

Will challenges unfortunately often occur at the worst possible time, when one or more parties are suffering from heartache and loss. These situations are not easy to deal with and a lot of people aren’t even sure where to start or what to do next.

If you’re looking for advice, help or information on the processes involved in challenging a will our qualified team at Turnbull Hill Lawyers can assist you. Please feel free to give us a call or send us a message using the form on the bottom of this page.

a) Undue Influence – What is it and how do I prove it?

If the person who assisted the deceased in drawing up the will stands to gain a substantial benefit from doing so, then in a will challenge case that person may be required to prove to the court that there was no form of pressure, threat, force, intimidation, trickery or fear involved at anytime during the will making process.

However, there are forms of persuasion that the court won’t deem to be unlawful. In these circumstances the court will only allow the will to be successfully challenged on the grounds of ‘Undue Influence’ where it is satisfied that the deceased’s mind and thought process was coerced to the point of making the resulting will a contradiction of what would have been the deceased’s true intentions.

b) Fraud – What is it and how do I prove it?

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A will can be challenged if it can be proved that the will was procured by fraud. Fraud occurs when the deceased/testator has been tricked into signing the will. Examples of fraud include the making of deliberately false statements or suppressing material facts. Fraud can also occur in situations whereby the testator is presented with a document that they believe is a Power of Attorney or deed, when actual fact it is the true will, and they sign it. Proving fraud is quite difficult and can depend on a number of factors.

You should consult a member of our experienced Will Dispute team to determine if your situation falls into the fraud category or send us a message using the form on the bottom of this page.

Note: Fraud is different to Undue Influence and if you are going to challenge the will it’s important to understand these differences. Call us for more information and we’ll help you clarify your situation.

c) Forgery – What is it and how do I prove it?

Forgery differs from the other circumstances because in cases of forgery the deceased is generally not involved in the creation of the will at all. In will challenge cases that involve forgery, the will itself can be forged, but so can the signature of the deceased. For example, the will might actually be valid, but the signature on it has been forged – which then invalidates the will.

When you challenge a will on the basis of fraud or forgery the burden will be on you to prove it with supporting details and evidence. Challenging a will on the basis of forgery is notoriously hard to prove and will typically involve the testimony of an expert in handwriting who is able to detect and prove discrepancies between the signatures. In cases where the will is what has been forged, not the signature, you will need to prove that the deceased/testator expressed their wishes elsewhere – by finding an earlier will, a draft or reliable witnesses. We’ve worked on a number of cases involving forgery and understand what is involved in successfully proving it – give us a call to discuss your situation or send us a message using the form on the bottom of this page.

d) Lacked Mental Capacity – What is it and how do I prove it?

A will can be challenged if you can prove that the deceased/testator lacked the mental capacity (testamentary capacity) required to create a valid will.

In order to challenge a will on the basis that the will-maker lacked mental capacity, you must first prove that they suffered either from:

  • Senility
  • Some other form of medical condition which would result in them having a reduced mental capacity
  • The influence of drugs, alcohol or other substances which are capable of altering a person’s mental state at the time of executing the will

However, you must be aware that extreme age or illness is not in themselves considered conclusive evidence of incapacity to make a will.

Proving that the deceased/testator lacked the mental capacity required to create a valid will requires that you can show that they did not understand the consequences of creating a will at the time of it’s creation. Specifically, anyone who creates a will must understand:

  • the value and extent of their property/estate
  • who they are expected to provision for in the will and who the beneficiaries will be
  • how their property/estate will be distributed
  • the disposition he or she is making at the time and what a will actually means

3. Who pays the fees if I challenge a will?

In most circumstances determining who pays the costs will depend on the result of the will challenge. A successful party may be entitled to an ‘order for costs’, which means the losing party might be ordered to pay the winning party for all reasonable costs they incurred. However, these costs ordered might not always cover the full legal costs incurred. In the majority of instances costs come from within the Estate’s assets.

To get a better indication of the fees involved, who is required to pay them and how they are paid, we recommend you call a member of our Will Dispute Team or send us a message using the form on the bottom of this page.

See Also: How much will it cost?

4. How much provision will I receive when I challenge a will?

If you can successfully prove that a will is invalid (using any of the circumstances mentioned above) the Court will set aside the will you challenged. This will will then be treated as though it never existed. Instead, the deceased person’s estate will be distributed in accordance with their previous valid will. If the deceased person had no prior will their estate will be distributed according to the “intestacy laws”.

How much you get depends upon the content of the deceased’s last will or the rules of intestacy if there is no such will. To discuss the rules of intestacy in more detail please feel free to give one of our experienced Contested Wills & Estates Team members a call or send us a message using the form on the bottom of this page.

5. Is it possible to challenge the validity of a will after probate has been granted?

Yes, it is possible to challenge a will after a grant of probate, however, it is a lot easier to challenge a will before probate has been granted. If probate has already been granted the burden falls onto the challenger (you) to prove the grounds for revocation of the grant. If you are in this position and you’d like to discuss what is involved, please call our team or send us a message using the form on the bottom of this page.

Turnbull Hill Lawyers, and specifically Adrian Corbould and Mary Windeyer, have been named in the prestigious 2022 Doyles Guide. Both were also listed in the 2021, 2020, 2019 and 2018 guides.

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