Challenging a Will

Challenging a Will in New South Wales generally means that a person is making a claim against an estate other than a family provision claim.

Challenging a will can be a complex and emotional process, and it is important to have experienced legal representation on your side. Our experienced will dispute lawyers have a deep understanding of the laws for contesting a will and challenging a will.

There are several grounds for challenging  a will, including:

• Lack of Testamentary Capacity: It must be demonstrated that the testator (the person who made the will) did not possess the mental capacity to understand the nature of their actions when creating the will. For instance, if the testator was suffering from a mental illness or cognitive impairment at the time of making the will, it might be considered invalid.
• Undue Influence: If there is evidence to suggest that the testator was coerced, manipulated, or unduly influenced by someone into making changes to the will that do not reflect their true intentions, the will can be challenged on these grounds.
• Fraud or Forgery: A will can be contested if there is reason to believe that it was forged, altered, or executed under fraudulent circumstances.
• Knowledge and Approval: The deceased did not know or approve the contents of the Will when they made it.
• Lack of Proper Execution: Each jurisdiction has specific requirements for the proper execution of a will. If these formalities are not followed, the will may be deemed invalid.

Challenging a will in Australia can be a complex process, and it is important to have experienced legal representation on your side. Our challening a will lawyers can help you understand your rights and obligations, and guide you through each step of the process.

Step 1. Consult a Lawyer: It is crucial for interested parties to consult with an experienced estate litigation lawyer to assess the merits of the case and determine if there are valid grounds for challenging. Our team offer a free no-obligation discussion about your matter.

Step 2. Review the Will: The next step in challenging a will is to review the will to determine if it meets the legal  requirements for a valid will.

Step 3. Gather Evidence: You will need to gather evidence to support your claim, including witness statements, financial records, medical records and other relevant documents.

Step 4. File a Caveat: If you are going to contest a will, it is a good idea to file a caveat with the Supreme Court to prevent the will from being admitted to probate. Filing a caveat can have costs consequences against you, so you should speak to a lawyer before filing anything with the Court

Step 5. Commence Proceedings: You can commence proceedings in the Supreme Court to contest the will.

Step 6. Mediation or Settlement: In all cases, the parties involved will attempt mediation. Mediation or negotiations may lead to a settlement outside of court to avoid lengthy and costly litigation.

Step 7. Court Hearing: If a resolution is not reached, the case will proceed to a court hearing, where both sides will present their arguments and evidence.

Step 8. Court Decision: The court will carefully consider all the evidence presented and make a decision regarding the validity of the will and any required actions, such as upholding the will, declaring it partially invalid, or setting it aside entirely.

There is not specific time limit for challenging a Will generally. Probate or letters of administration can be contested even after it has been granted.

In New South Wales, you have 12 months from the date of the deceased’s death to contest a will. It is important to act promptly, as after this time, the will may be admitted to probate and become binding on all parties.

An executor can contest a will if they have standing to do so, such as if they are a spouse or dependent of the deceased. However, as an executor is also responsible for carrying out the wishes of the deceased, it is important to seek legal advice before taking any action.

Challenging a will is a complex legal process that requires a thorough understanding of estate law and the ability to present a compelling case. Engaging the services of an experienced estate litigation lawyer is crucial to ensure that the challenging party’s interests are protected and that the case is handled with sensitivity and professionalism during what is often an emotionally challenging time.

Challenging a will is a legally intricate and emotionally charged process that should not be undertaken lightly. It is essential to have valid grounds for contestation and to seek professional legal advice from an experienced estate attorney to navigate through the complexities of the legal system and safeguard the rights and interests of all parties involved.

At Stephen Wawn & Associates, we understand the importance of ensuring that a deceased person’s assets and property are distributed according to their wishes. If you are considering challenging or contesting a will, contact us today to schedule a consultation with one of our experienced will contest lawyers.