Contesting a will in NSW can be done only after a person has died and either before or after a grant of probate. A will can be challenged where it is thought to be unfair, fraudulent, or undue influence was used on the testator when the Will was drafted. You should contact a solicitor as soon as possible as time limits to your claim may apply.
Who can contest a Will?
An interested person can contest a will in the NSW Supreme Court. You are considered an ‘interested person’ if you are:
- A person named in a previous Will as an Executor
- A person named in a previous Will as a beneficiary
- A person named in the Will as a beneficiary
- A person not named that would be entitled to the estate is there was no will
Challenging The Validity Of A Will
Family Provision Claim
If you are eligible person and you have not been adequately and properly provided for, you may bring a claim for provision or further provisions from the deceased’s estate.
Testator Lacked Testamentary Capacity
If the testator lacked capacity when they instructed and executed the will in question, then it is invalid. The test for capacity was established in Banks v Goodfellow(1870) 5QB 549. Briefly, these principles are broadly explained as:-
- The testator understood that he/she is making a Will and what it means;
- Recalled the nature and extent of their property in general;
- Understood and appreciated any moral obligations they may have towards family, and
- He/she was of sound mind.
If the will is subject to fraud then it is invalid. Typically this is done in cases where a beneficiary is attempting to benefit and/or benefit a greater share than they would otherwise be entitled.
If it can be established that the testator was under some form of undue influence at the time of executing the will the will be declared invalid. This influence is not required to be psychical in nature but can also include emotional and psychological
In cases of forgery the will will be ruled to be invalid.
How can Catron Simmons Lawyers Assist?
Catron Simmons Lawyers are experienced and can provide you an assessment of your claim to challenge the will. In circumstances where a challenge of the will is being considered you should contact a solicitor as soon as possible because any delay can damage any potential claim.