You’ve just lost a loved one. Going to court might not be at the top of your mind – but if the will isn’t legally valid, making sure that it’s sorted is important.
Section 54 of the Succession Act 2006 (NSW) sets out who is entitled to a copy of a will. This list includes:
It is important to note that challenging a will in NSW is different to contesting a will - see our ‘Cautionary Tale’ article, here.
Only an ‘interested person’ can challenge a will in NSW if they believe it isn’t legally valid. An ‘interested person’ is:
There are a few reasons that a will might be considered invalid in NSW. These are:
If there has been any fraud in making the will it will be invalid. Unfortunately, this does happen occasionally. Fraud is a legal term that refers to the intentional misrepresentation of truth. When it comes to a fraudulent will this could mean something as blatant as a forgery or as subtle as being tricked into signing or misled about what is in the will.
A will could be invalid because the person didn’t know what they were signing, or because they were being pressured by someone in their life to sign a will generally, or one that didn’t really meet their desires. This is referred to as ‘undue influence’ and though it isn’t a common situation, it has been known to occur.
If a person revokes their will, or creates another one to take its place, this will make the first invalid.
It could also be invalid if the person signing simply didn’t have the capacity to do so. Perhaps they’re suffering from dementia, Alzheimer’s or in some other way have diminished capacity. In this case, any will signed could be considered legally invalid.
It is important to note that simply because someone has dementia or some other medical condition they are not automatically incapable of executing a will. The legal test set out in Banks v Goodfellow simply requires that the willmaker understands what they are doing, understands the effects that signing the will can have, is aware of the extent of the property that the will covers and can understand the various claims that they should be considering when making the will. If they can meet this test, then they will be considered to have capacity.
If the person executing the will wasn’t aware or didn’t approve of the contents of the will, it can also be considered invalid. To challenge on these grounds you will have to have evidence to prove that claim.
Finally, a will might be considered invalid if it doesn’t meet the legal requirements for executing a will. In NSW these are that it must be made in writing, signed and witnessed by two adult people who are present when it was executed.
Unlike with Family Provision Claim, there’s no time limit for contesting a will in NSW if it is for invalidity. In fact, you can challenge the validity of a will even if there’s been a grant of probate. However, it makes sense to do it sooner rather than later to avoid further complications or, worse, the distribution of the estate.
If a grant of probate hasn’t already been made, then you may wish to file a probate caveat. This requests that the Court not issue a grant of probate until the matter has been settled either by agreement or through Court order. This will then give you the chance to resolve the matter amicably or begin a matter in the Court.
If you aren’t able to settle this matter with other interested persons, then you can pursue the matter in Court. If you’ve been served with a notice of the application then you can file an appearance and will be joined as a defendant. Or you can commence proceedings by filing a statement of claim which is then typically served on the executor.
If you do want to commence Court proceedings, it’s very important that you get independent legal advice first. These matters can be very complex, and having an experienced legal representative can make all the difference!
The cost of contesting a will varies, depending on how complex the case is, whether it ends up in court and for what reason the application has been made. The Court may order that the costs of contesting a will are to be paid out of the estate, or that costs be paid by the interested person or another party.
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