In New South Wales, a will can be challenged in certain circumstances:
- The deceased did not have capacity when they signed the will;
- They made the will under the undue influence of others;
- An eligible person was left out of the will or was otherwise not adequately provided for.
A beneficiary under a will may also be able to make a claim if they believe that an executor or trustee has improperly administered an estate.
Contesting a will
can be a complicated process, and the laws vary from state to state. We can assist executors and beneficiaries with:
Family provision claims
A will allows a person to decide how their assets will be distributed after their death. However, legislation protect eligible persons who have been left out of a will or believe that they have not been left enough.
If an eligible person believes that they have been left out of a will or inadequately provided for, they can make a family provision claim. Due to the legislative definition of ‘eligible person’, this can be especially complicated for blended families. In New South Wales, an eligible person must make an application for a family provision claim within 12 months of the death of the will-maker.
For a will to be valid, the will maker must have had testamentary capacity at the time the will was made. Testamentary capacity is he ability to understand what it means to create a will, the assets they own and are leaving to others, and the people who could make a claim to the estate. To have testamentary capacity, a will maker must not be affected by a mental disorder which
influences the choices they make in disposing their assets in a will. Potential beneficiaries can
contest a will
if they can prove that the will maker did not have testamentary capacity at the time it was made.
If an individual assisted the will-maker in drafting the will also stood to gain from the estate, other beneficiaries may argue that this party influenced the will-maker. If a will-maker was coerced, the potential beneficiaries can
contest the will.
However, coercion is often difficult to prove.
Breach of trust by an executor or trustee
Trustees and executors must comply with a range of duties. If a beneficiary believes that the trustee or executor of a will has administered an estate improperly, they may be able to ask the Court to remove the trustee or beneficiary, or seek compensation.
If you’re contesting a will or require assistance in defending an estate, contact us an firstname.lastname@example.org or call us on (02) 0429 7002.