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CHALLENGING WILLS IN NSW

In some circumstances, it is possible to challenge the VALIDITY OF THE WILL itself. The Validity of the Will could be challenged, for instance, on the basis of: UNDUE INFLUENCE, lack of MENTAL CAPACITY (testamentary capacity), FRAUD or FORGERY.

It is possible to challenge the VALIDITY OF THE WILL before or after a grant of Probate. But it is very difficult to challenge the VALIDITY OF THE WILL after the distribution of the Estate.

Generally, only some interested persons would be entitled to challenge the Validity of the Will, for example:

  • Potential Beneficiaries, ie persons who would be entitled to the estate if there was NO WILL (that is persons entitled under INTESTACY)
  • Beneficiaries named in the CURRENT OR PREVIOUS WILL

Generally, in NSW the Will could be challenged, for instance on the basis of:

  • The deceased person lacked TESTAMENTARY (MENTAL) CAPACITY to make a will.
  • A beneficiary committed FRAUD for the sole purpose of receiving a benefit under the will.
  • The deceased person made the will UNDER UNDUE INFLUENCE.
  • The Will was made by another person or signed by another person and is a FORGERY.
  • The deceased person DID NOT KNOW AND APPROVE the contents of the Will.
  • The deceased entered into a CONTRACT about the ESTATE but did not adhere to the terms of the contract, so a claim could be made for a BREACH OF CONTRACT.
  • A TESTAMENTARY TRUST is established appoint a trustee under a will to use the property for the benefit of a beneficiary. A beneficiary can challenge the decision making of a trustee.

In order to challenge a Will in NSW, the person should apply to the Supreme Court of NSW.

Before challenging a Will, the person has to know if Probate was granted.

It is possible to file a Probate caveat. It will prevent a grant of Probate being allowed. The Court will not make a grant of Probate until it is agreed that the caveat could be removed or the Court order is made to remove it.

If there is no agreement about the validity of the Will,one of the parties has to apply to the Supreme Court so that a Judge could decide the case.

The applicant (the plaintiff) will file a claim (statement of claim) arguing that the Will is valid. The Statement of Claim will explain the reasons of the Will's validity.

The other party (the defendant) has to file a Defence to the Claim in Court setting out the reasons why the Will is NOT valid.

Plaintiff and Defendant will file their statements(Affidavits) and bundles of evidence so the Judge could decide the case.

The Judge has discretion to determine who will pay the costs of the Court case.

Im most cases, the Judge will make an Order that the successful party's costs and disbursements are paid by the other party. If the Plaintiff won the case, the Defendant will be ordered to pay Plaintiff’s ordinary costs. In some instances, ordinary costs may not be the entire amount of costs that the Plaintiff incurred.

If the validity of the Will is challenged, the interested person has to file a Probate caveat to prevent Probate of the Will being allowed by the Court(Granted).

The interested person has to file proceedings in the Supreme Court of NSW, so the Judge could determine the case.

In most instances, the interested person who says that the will is valid, files a Statement of Claim in Court giving the reasons why the Will is valid. This person is called the Plaintiff.

The other person (called the Defendant) who filed the caveat, then files a Defence to the Claim explaining the reasons why the Will is invalid.

Plaintiff and Defendant have to file statements(Affidavits) and evidence, so the Judge could determine the case.

City Lawyers and Consultants

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