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Disputing a Will in Sydney

There are two different ways of disputing a will in Sydney. Someone can challenge a will because they doubt the validity of the document, or someone can contest the distribution of the assets contained in the will on the grounds that it is unfair. This article clarifies the difference between these two different legal methods of disputing a will, and outlines the eligibility requirements to challenge or dispute a will.

Disputing A Will In Sydney: Probate Caveat

The first step for anyone concerned with the validity of a will is to find out whether the Supreme Court has already probated the will. If the will has not been probated, it is prudent to file for a probate caveat. This caveat will prevent the court from issuing a probate grant until the validity of the will is established. Anyone planning to file a caveat should discuss this step with a solicitor experienced in probate law.

Disputing A Will In Sydney: More Recent Will

A will is only binding if it is judged to be valid and legal. There are several reasons why a will might be found invalid. Firstly, it may not be the most current will of the deceased. It is standard for wills to contain a revocation clause, so that only the most recent will is valid. Therefore, if someone locates a will that they believe invalidates the will in question, they should present the will to the court to be proved.

Disputing A Will In Sydney: Formal Requirements

A document is only a formal will if it is drafted according to certain statutory requirements. A valid, formal will is in writing, signed appropriately by the testator and witnessed by two independent parties (neither of whom is the spouse or beneficiary of the testator). An informal will is any document that sets out testamentary intentions but fails to comply with these prescriptions. The Supreme Court can still validate an informal will, in which case it will become binding on all parties. If the Supreme Court cannot validate the will, it can prove a previous will, or rule the estate intestate.

Disputing A Will In Sydney: Testamentary Capacity

From time to time, a family member of a deceased will challenge the validity of a will on the basis that the testator exhibited declining mental acuity at the time of making the will. It can be difficult to prove lack of capacity, as there needs to be sufficient medical evidence to support the claim that the testator lacked the required testamentary capacity to make a will. Disputing a will in Sydney based on mental incapacity can be a drawn-out process with no guarantee of success.

Disputing A Will In Sydney: Forgery, Fraud or Undue Influence

A will can also be legally challenged on the basis that it is not a genuine document. A will is invalid if it was made through forgery, or fraud, or through someone placing undue pressure on the testator to draft the will in a certain way.

Disputing A Will In Sydney: Questioning The Validity Of A Will

Any party who has a legitimate “interest” may challenge a will. For these purposes, an “interested person” includes anyone named in the current or previous wills as an executor and/or beneficiary.

Disputing A Will In Sydney: Contesting Provisions

It is increasingly more common for a will to be contested in Sydney. A beneficiary, or possible beneficiary, of an estate can feel that the testator failed to make adequate provision for them in their will. In Sydney, an eligible party makes a Family Provision Claim to the Supreme Court of NSW in the hope that he or she will receive a greater share of the estate than already established in the will.  

Disputing A Will In Sydney: Eligibility To Claim

The Succession Act 2006 mandates that only a select list of people can make a claim against a deceased estate. This list includes:

  • The current spouse of the deceased;
  • Someone who was in a current de facto relationship with the deceased;
  • A biological or legally adopted child of the deceased;
  • A former spouse of the deceased;
  • A grandchild or member of the deceased’s household provided that he or she was to some extent dependent on the deceased in the past; and
  • Someone who was in a close personal relationship with the deceased before their death.

Disputing A Will In Sydney: Time Limits

There is no time limit when disputing the validity of a will in Sydney. However, there are strict deadlines to make a claim against a deceased estate. An applicant can only make a Family Provision Claim in the twelve-month period following the testator’s death unless the court makes an exception for a late application. If at all possible, the claimant should inform the executor of the estate before the six-month mark, as after this point the executor is at liberty to give out the bequests listed in the will. It will then be far harder to recoup the assets of the estate for any redistribution to the claimant.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

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Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.

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