Challenging A Will In NSW

Challenging a Will

Whilst it is difficult to challenge a Will there are grounds upon which the validity of the document can be questioned. In NSW the Succession Act stipulates that there are 7 categories of eligible persons who may apply to challenge a Will, including a (ex) husband or (ex) wife, defacto, children, grandchildren and even a person who can prove a close personal relationship living with the deceased and dependent. A Will can be challenged on a number of grounds including fraud, forgery, undue influence or lack of mental capacity.

Challenging a Will vs Contesting a Will

It is important to note the subtle differences between challenging and contesting a Will.

• A Will is challenged when the validity of the Will itself is under question.
• Contesting a Will relates more to the situation where the disbursement of funds and property of the deceased is disputed and associated friends and/or family believe they have not been adequately or properly provided for in the Will.

Reasons for challenging a Will

After you die, the validity of a Will can be challenged under a few circumstances. Typically these include the following:

Fraud

A Will can be challenged in the event that fraud has occurred. If it has been identified that the deceased was misled when signing their Will or deliberately falsified statements or facts, a review will be conducted. Whilst it is difficult to prove fraud it can be a substantial reason for challenging a Will.

Forgery

Typically, Will forgery arises when the deceased was not involved in the preparation of their Will at all. It may be that their signature was forged which invalidates the Will entirely. This can be challenging to prove, so if you are suspicious that fraudulent activity may have occurred, it is best to get legal advice.

Undue influence

It is important to be aware that undue influence does differ to fraud. Undue influence refers to a situation where a person or persons who aided the deceased in preparing the Will coerced them to write it in such a way that they would stand to gain substantial benefit from the outcome.

Lack of mental capacity

A Will can be challenged if proof can be provided demonstrating that the deceased, at the time of writing their Will, lacked mental capacity and was therefore unfit to create a Will at the time. Examples include the presence of a medical condition, senility or situation where the deceased was under the influence of a substance, which altered their mental state of mind at the time.