Losing a loved one is a deeply emotional experience. Navigating the legalities of their estate can add further stress, especially if you believe the will doesn't fairly reflect the deceased's wishes or adequately provide for eligible individuals. 

In New South Wales, the law provides avenues to contest a will, but it's a process that requires careful consideration, legal understanding, and a solid foundation.

This blog post aims to shed light on the key aspects of contesting a will, helping you understand your rights and the steps involved. Crucially, it also serves as a vital warning to those drafting a will: seek proper legal advice, especially if you anticipate potential challenges.

Who Can Contest a Will?

Not just anyone can contest a will. The law specifies categories of individuals who have standing to make a claim. These typically include:

🔵 Spouses or de facto partners: This includes current spouses and, in certain circumstances, former spouses.

🔵 Children: This includes biological, adopted, and sometimes stepchildren.

🔵 Parents: In some limited circumstances.

🔵 Siblings: Usually when they were financially dependent on the deceased.

🔵 Grandparents: Again, usually in situations of dependency.

🔵 Other individuals: Who were wholly or partly dependent on the deceased at the time of their death and were a member of the deceased's household.

It's crucial to determine if you fall within one of these categories before proceeding.

Grounds for Contesting a Will

Simply disagreeing with the contents of a will isn't enough to contest it successfully. There must be valid legal grounds. Common grounds for contesting a will include:

🔵 Lack of Testamentary Capacity: This argues that the deceased didn't have the mental capacity to understand the nature and effect of making a will at the time it was created. This could be due to illness, dementia, or other cognitive impairments. For example, if the deceased was suffering from severe Alzheimer's and didn't understand they were signing a document that would distribute their assets after death, this could be grounds for a challenge.

🔵 Lack of Due Execution: This refers to whether the will was signed and witnessed correctly according to the law. A will generally needs to be signed by the testator in the presence of two independent adult witnesses, who also sign the will in the presence of the testator and each other. If these formalities weren't followed, the will might be invalid.

🔵 Fraud or Forgery: If there's evidence that the will was created through fraudulent means or that the deceased's signature was forged, it can be challenged. This is a serious allegation and requires strong evidence.

🔵 Undue Influence: This occurs when someone pressured or coerced the deceased into making a will that didn't reflect their true wishes. Proving undue influence can be difficult, as it requires demonstrating that the deceased's free will was overcome. For instance, if a caregiver isolated the deceased and constantly pressured them to change their will in their favor, this could potentially constitute undue influence.

🔵 Family Provision Claim: This is a separate but related type of claim where an eligible person argues that the will doesn't make adequate provision for their proper maintenance, education, or advancement in life. This is particularly relevant when considering leaving someone out of a will or providing them with a smaller share than they might expect. This isn't about the validity of the will itself, but rather its fairness to certain close family members.

A Crucial Warning for Those Drafting a Will

If you are in the process of making a will and have any concerns about potential challenges after your passing – especially if you intend to exclude a close family member or provide an unequal distribution of assets – seeking comprehensive legal advice is absolutely essential.

A solicitor can help you:

🔵 Ensure Testamentary Capacity: They can assess your understanding and document it appropriately, potentially involving medical assessments if there are any doubts.

🔵 Guarantee Due Execution: They will ensure your will is signed and witnessed correctly, minimising the risk of challenges on this basis.

🔵 Address Potential Family Provision Claims: They can advise you on the potential for family provision claims from eligible individuals you intend to exclude or provide less for. While you have the right to decide how to distribute your assets, understanding the legal framework surrounding family provision can help you make informed decisions and potentially structure your will in a way that minimizes the risk of a successful claim. This might involve documenting your reasons for your decisions, although this isn't always a foolproof solution.

🔵 Mitigate Claims of Undue Influence: By working independently with a solicitor, you can demonstrate that your will reflects your genuine wishes, free from coercion.

Ignoring these potential issues when drafting your will can lead to significant legal battles, emotional distress, and the erosion of your estate's value after your death. Investing in proper legal advice during the will drafting process is a proactive step towards ensuring your wishes are respected and minimizing the likelihood of a successful contest. 

The Process of Contesting a Will 

Contesting a will is a legal process with specific steps and timelines:

🔵 Seek Legal Advice: This is the most crucial first step for anyone considering a challenge. A solicitor can assess your situation, advise on your prospects of success, and guide you through the process. They will help you understand the relevant laws and procedures.

🔵 Lodge a Caveat: If probate (the official proving of the will) hasn't yet been granted, your solicitor can lodge a caveat with the Supreme Court of NSW. This prevents the executor from administering the estate until your claim is resolved. There are strict time limits for lodging a caveat after becoming aware of the will.

🔵 Negotiation and Mediation: Often, the parties involved will attempt to resolve the dispute through negotiation or mediation. This can be a less costly and time-consuming way to reach a settlement. Your solicitor will represent your interests during these discussions.

🔵 Court Proceedings: If a settlement can't be reached, you may need to commence court proceedings in the Supreme Court of NSW. This involves filing formal documents outlining your claim and presenting evidence to support your case. There are strict time limits. 

🔵 Evidence Gathering: Building a strong case requires gathering relevant evidence. This might include medical records, witness statements, financial documents, and communication records.

🔵 Court Hearing: If the matter proceeds to court, a judge will hear the evidence from all parties and make a decision on the validity of the will or the family provision claim.

Important Considerations and Timelines

🔵 Time Limits: There are strict time limits for contesting a will, particularly for family provision claims. Generally, these claims must be filed within 12 months from the date of the deceased's death, although the court may grant extensions in limited circumstances. Missing these deadlines can prevent you from pursuing a claim.

🔵 Costs: Contesting a will can be expensive. You will likely incur legal fees, and if you are unsuccessful, you may be ordered to pay the other party's legal costs as well. It's important to discuss the potential costs with your solicitor upfront.

🔵 Burden of Proof: The person contesting the will bears the burden of proving their grounds for the challenge. This requires presenting sufficient evidence to convince the court that the will is invalid or that adequate provision hasn't been made.

🔵 Emotional Toll: Contesting a will can be emotionally draining and can strain family relationships. It's important to be prepared for this and to seek support if needed.

Seeking Legal Advice is Paramount

Whether you are considering contesting a will or drafting one, engaging with a solicitor is crucial. 

For those looking to challenge a will, they provide essential guidance through a complex process. 

For those creating a will, they offer invaluable advice to minimize the risk of future disputes and ensure your wishes are ultimately honored. 

Don't underestimate the importance of professional legal counsel in these sensitive and significant matters.