Challenging a Will

There is a legal presumption that every adult has the capacity to make their own decisions, including how the effects of their Estate are distributed. However, there may be times when a Will is not valid. Anyone named in the Will, named in a previous Will, or entitled under the rules of intestacy can challenge the validity of a Will. There are five grounds on which a Will can be challenged:

• The absence of due execution
• The absence of knowledge and approval
• The absence of testamentary capacity
• Fraud
• Undue influence, coercion, or suspicious circumstances.

Any claims that a Will was invalid can be made prior to the grant of Probate. Usually a caveat is lodged through the Supreme Court of NSW preventing Probate being granted until the challenge can be dealt with by the Court. Testamentary capacity is the most common challenge to the validity of a Will.

Testamentary capacity is when a testator (a person making a Will) has the mental capacity to make decisions about the distribution of their Estate. The testator must be of sound mind, memory and understanding, for a Will to be valid. If you are aware that the testator had a medical condition that impacted their mental capacity, you may be able to challenge their Will. However, if a person is diagnosed with a medical condition, it does not automatically mean that they lack testamentary capacity. Testamentary Capacity is determined on the severity of the condition and its impact on person’s insight and their ability to make decisions. The Court will deem that the Will is invalid based on the evidence and medical testimony that the person lacked testamentary capacity.

The Court looks at the individual circumstances surrounding the testator. Justice Hallen of the Supreme Court of NSW said in Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275, what may not constitute undue influence in one case with a strong Will and ordinary fortitude may constitute undue influence in the case of a more susceptible person. Therefore, the Courts look at several factors to determine if the testator had sufficient knowledge of or approved the content of the Will. These include:

• The circumstances regarding the preparation of a Will.
• If a beneficiary was involved in the preparation of a Will.
• The physical and mental impairment of the testator.
• Whether the challenged Will was significantly different to a prior Will.
• Whether the challenged Will makes testamentary sense.

If you are wanting to challenge a Will, contact us for a free thirty-minute consultation with a Will dispute lawyer in Sydney.

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.