Challenging a Will (Validity Disputes)

Frequently asked questions

Challenging a Will means questioning its legal validity. You are not arguing about whether the distribution of assets is fair; instead, you are claiming that the document itself is legally flawed and should not be recognised by the court.

There are several established grounds for challenging a Will's validity, including:

Lack of mental capacity: The person making the Will (the testator) was not of sound mind.
Undue influence: The testator was pressured or coerced by another person.
Fraud or forgery: The document or the signature is fake.

This process is different from contesting a Will, which involves making a Family Provision Claim because you feel you have not been adequately provided for.

Every person has the right to decide who inherits their assets. However, this right is subject to certain legal limitations. A Will can be challenged if there is evidence that it is not a true reflection of the testator's intentions.

The most common grounds for challenging a Will include:

Lack of Testamentary Capacity: The testator was not mentally capable of understanding the nature of the Will they were signing.
Undue Influence: The testator was under extreme pressure from another person, which overpowered their own free will.
Fraud or Forgery: The Will was created through deceitful means, or the signature was forged.
Improper Execution: The Will was not signed and witnessed correctly according to legal requirements.

For a free initial consultation, please call us on 1800 571 113.

Not just anyone can challenge a Will. To do so, you must have a direct financial interest in the outcome. This means you stand to gain something if the Will is proven to be invalid.

The people who can typically challenge a Will are:

Beneficiaries who were named in a previous, valid Will.
Beneficiaries named in the current Will who question its validity.
Next of kin who would be entitled to inherit the estate under the rules of intestacy if there were no valid Will.

If you believe a Will is invalid due to unfair pressure, fraud, or the testator's lack of capacity, you must act promptly. The first step is to contact a solicitor specialising in will disputes.

During the initial consultation, we will ask for information about:

Your relationship with the deceased.
The circumstances surrounding the creation of the Will.
Why you believe the Will is invalid.

We will assess the merits of your claim and advise you on the best course of action.

If you successfully challenge a Will, the court will declare it invalid. The document is essentially struck out and has no legal effect.

What happens next depends on whether there was a previous, valid Will.

If an earlier valid Will exists, that Will is used to distribute the estate.
If there is no other valid Will, the deceased is considered to have died "intestate." In this case, the estate is distributed according to a set formula defined by state law, which prioritises the closest next of kin.

It is important to remember that a successful challenge invalidates the Will; it does not automatically grant you a share of the estate unless you are a beneficiary under a previous Will or an eligible relative under intestacy rules.

Undue influence occurs when a person is pressured, manipulated, or coerced into making a Will that does not reflect their own wishes. It involves more than simple persuasion; it is a level of influence so strong that it overpowers the will-maker's own judgement. Proving undue influence can be difficult, as it often happens in private. Evidence is required to show that the will-maker was not acting freely when they signed the document.

A Will is a formal legal document that must meet specific requirements to be considered valid. If it fails to meet these standards, it can be challenged in court. The main grounds for challenging a Will's validity include:

Improper Formalities: The Will was not correctly signed or witnessed according to legal requirements.
Lack of Testamentary Capacity: The person making the Will (the testator) was not of sound mind and did not understand the nature and effect of the document they were signing.
Undue Influence: The testator was coerced or pressured by another person into making the Will against their true wishes.
Fraud or Forgery: The Will or signatures on it are fake, or the testator was tricked into signing it.
Knowledge and Approval: The testator was not aware of or did not approve the contents of the Will.

While these terms are often used interchangeably, they have distinct legal meanings. It is important to understand the difference.

Challenging a Will means questioning its legal validity. If successful, the court may declare the Will invalid, and either a previous Will becomes effective or the estate is distributed according to intestacy rules (as if there were no Will).
Contesting a Will (also known as a Family Provision Claim) accepts the Will is valid but argues it fails to make adequate financial provision for your needs. The goal is to receive a larger share from the estate.

Testamentary capacity is the legal term for the mental ability required to make a valid Will. For a Will to be valid, the person making it must have:

Understood they were creating a Will and its effects.
Known the general nature and extent of their assets.
Comprehended who had a reasonable claim on their estate (such as family members).
Not been suffering from any mental disorder that influenced the terms of the Will.

If you believe the will-maker lacked this capacity, you may have grounds for challenging a Will.

The first step is to seek advice from a will dispute lawyer. They can assess your situation and advise whether you have strong grounds to proceed. If you decide to move forward, your lawyer will help you gather evidence to support your claim. This may include medical records, witness statements, and financial documents. Legal proceedings are formally commenced by filing a statement of claim with the Supreme Court. It is vital to act quickly, as strict time limits apply.

In New South Wales, there is no strict time limit for challenging the validity of a Will. However, it is crucial to act as soon as possible. If you delay, the executor may proceed with distributing the estate’s assets. Once the assets are distributed, it can be very difficult and costly to recover them. Seeking legal advice promptly protects your position and ensures you do not miss the opportunity to make a claim.

Challenging a Will involves complex legal arguments and strict court procedures. Having an experienced will dispute lawyer is essential. A specialist lawyer can:

Provide an honest assessment of your chances of success.
Guide you through the evidence-gathering process.
Navigate court requirements on your behalf.
Represent your interests to achieve the best possible outcome.

This legal expertise is invaluable in ensuring your claim is presented effectively and your rights are protected throughout the process.

Are there Time Limits for Challenging a Will?

There is no strict statutory time limit, but the claim should be made before probate is granted to prevent complications.

If probate has already been granted, you may still be able to contest the will, but it becomes more difficult.

What are the Grounds for Challenging a Will?

Lack of testamentary capacity

the deceased did not have the mental capacity to understand what they were doing when making the Will (for example, due to cognitive decline or illness such as dementia)

Undue influence or coercion

the deceased, under duress, made or changed their Will against their true wishes

Fraud or forgery

the Will was created under fraudulent circumstances, forged, altered or tampered with

Improper execution

the Will does not meet legal requirements (for example, if it was not signed or witnessed properly)

Who Can Challenge a Will in NSW?

Any person with an interest in the estate can challenge it, such as but not limited to:

Beneficiaries under the current or prior Will
People who are entitled under intestacy laws, such as spouses or former spouses, children, parents, siblings or other close relatives
Executors or Administrators, including those appointed in prior Wills or under intestacy laws
Those with financial interests in the estate, such as creditors owed money by the deceased

What Does It Mean to Challenge a Will?

Challenging a will involves disputing its validity. This may occur when there are questions about whether the deceased had the capacity to make the Will or if external factors, such as coercion, played a role.

If the challenge is successful, the Will may be declared invalid, and an earlier Will (if one exists) or the intestacy laws will apply.

Challenging a will in New South Wales is a complex legal process, but it’s often necessary to ensure fair outcomes. Whether you feel the Will is invalid or suspect it was created under undue influence, our experienced will dispute lawyers can help.