Challenging of Wills

Contesting A Will

Are you seeking advice on how to challenge a will and your options?

Challenging A Will or Making A Claim On The Estate

There are many circumstances which may give rise to challenges on Wills and Estates. When we talk about contesting a will, it can have two meanings:

The first basis for a challenge is under Chapter 3 of the Succession Act (formerly the Family Provision Act)- commonly known as a Family Provision Claim.
The second is that the will is not valid, usually either because the legal formalities have not been met, this is known as an “Informal Testamentary document” or because the maker of the will (“the testator”) did not have testamentary capacity at the time the Will was made.

Family Provision Claims

If you:

Have been left out of a Will; or
Haven’t received enough out of the Will or receive less than other beneficiaries for no good reasons; or
Miss out altogether because the deceased didn’t have a will at all.

Then it is possible to bring a claim by making application to the Supreme Court for provision or further provision in the estate under Chapter 3 of the Succession Act (formerly the Family Provision Act).

In simple terms to bring a claim you will need to prove that you are an “eligible person” and have been left without adequate provision from the deceased person’s estate.

“Eligible person” this can include a spouse, de-facto, former spouse, children, dependent grandchildren, persons who at any particular were part of the same household and dependant (eg: siblings, foster children) or persons who were in a close personal relationship at the time of the persons death (unpaid carer).

In this scenario we can help you bring a claim against the estate. Undertake any settlement negotiations on your behalf and put forward the necessary evidence in support of your claim before the Court. At the Estate Litigation Experts we have a great deal of experience and success in handling these cases. If you believe this applies to you then we can help you every step of the way.

Time limits: To make a claim for Family Provision, a strict time limit of 12 months from the date of death applies. Claims commenced outside this time limit require approval of the Court.

Informal Testamentary Documents

If the formalities have not been strictly met, the Supreme Court has the power to still recognize the document as a valid will under Section 8 of the Succession Act, if there is sufficient evidence that the testator recognised the document as representing his or her last wishes, and intended it to operate as their last will “without more”. A suicide note is an example where an informal testamentary document has been held as a valid will. If you think you may have a document that may be an informal will please contact us for advice.

Lack Of Testamentary Capacity

In a different category the mental capacity of the testator to make a will may be in question. Testamentary capacity is assessed on the basis of a test which was developed in the case of Banks v Goodfellow.

It is necessary to show that the person making their last Will and Testament:

Understood the nature of the will and its effect;
Had some idea of the extent of the property which they are gifting under the will; and
Were aware of the persons for whom they would usually be expected to provide (even if he/she chooses not to) and be free from any delusion of the mind that would cause him/her reason not to benefit those people.

Undue Influence

The harder questions arise if the testator is claimed to have been subjected to pressure, the legal term for this is “Undue Influence.”

Signing a will is strong evidence that the maker accepts it as a valid document. To set a will aside on the grounds of undue influence, one must virtually show that the maker was so pressured or overcome that the will does not represent their true wishes and intention.

Broken Promise - Equitable Estoppel Claims

You may have had an expectation of being named a beneficiary in a Will. This expectation can be based on a promise made to you by a person that in return for care provided to them in their lifetime they promised to leave you an expectation in their Will (e.g. their home or a sum of money) but failed to do so. It must be shown that you relied on their promise to your disadvantage.

Protect Your Rightful Inheritance

At Barwick Boitano Lawyers, we understand the emotional and financial toll that a disputed will can take on families. If you believe a loved one’s will is invalid or fails to provide for you adequately, our experienced team is here to guide you through the process of challenging the will and protecting your rightful inheritance.

Our skilled lawyers are well-versed in the complexities of NSW succession law and can assist you in challenging a will on various grounds, including:

Lack of testamentary capacity: If the will-maker lacked the mental capacity to understand the nature and consequences of making a will.
Undue influence: If the will was made under coercion, pressure, or influence from another person, and does not reflect the will-maker’s true intentions.
Fraud or forgery: If the will was obtained through fraudulent means or is a forged document.
Failure to comply with formal requirements: If the will was not properly executed according to legal requirements.
Rectification: If the will does not accurately reflect the will-maker’s intentions due to a clerical error or mistake.
Family provision claim: If you believe you have not been adequately provided for in the will and seek a greater share of the estate.

We understand the sensitive nature of these matters and will handle your case with the utmost professionalism and compassion. Our team will work tirelessly to gather evidence, build a strong legal strategy, and represent your interests in court, if necessary.

Don’t let an invalid or unfair will jeopardize your future. Contact Barwick Boitano Lawyers today to schedule a consultation and take the first step towards protecting your rights and securing your rightful inheritance.

Challenging Wills in New South Wales (NSW)

In NSW, there are several grounds on which a will can be challenged, including:

Lack of testamentary capacity: The will-maker (testator) lacked the mental capacity to understand the nature and consequences of making a will at the time it was executed.
Undue influence: The will was made under coercion, pressure, or influence from another person, and does not reflect the testator’s true intentions.
Fraud or forgery: The will was obtained through fraudulent means or is a forged document.
Failure to comply with formal requirements: The will was not properly executed according to the requirements set out in the Succession Act 2006 (NSW), such as being in writing, signed by the testator, and witnessed by two independent witnesses.
Rectification: The will does not accurately reflect the testator’s intentions due to a clerical error or mistake.
Family provision claim: An eligible person (such as a spouse, child, or dependent) believes they have not been adequately provided for in the will and seeks a greater share of the estate.

To challenge a will, the claimant must file proceedings in the Supreme Court of NSW within 12 months of the testator’s death, unless an extension is granted by the court. The court will consider the evidence and determine the validity of the will or make appropriate orders, such as revoking the will or granting a family provision claim.

Contesting A Will

Challenging A Will or Making A Claim On The Estate

Family Provision Claims

Informal Testamentary Documents

Lack Of Testamentary Capacity

Undue Influence

Broken Promise - Equitable Estoppel Claims

Protect Your Rightful Inheritance

Power of Attorney

Enduring Guardian

Claiming on an Estate

Family Provision Claim

Equitable Estoppel Claims

Undue Influence

Probate & Administration

Will Drafting

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