A Will is an important legal document that provides the instructions for how a person wishes their estate to be dealt with, after their death. Because a Will can involve the distribution of property with significant value, it is important that Wills are executed validly in order to accurately reflect the wishes of the deceased.
If you have concerns about provisions made in a loved one’s Will, our experienced wills and estate lawyers are here to help.
Challenging the validity of a Will
While the specific reasons for challenging a Will are unique to each person, there are a number of common reasons why a Will may be found to be invalid. These include:
- the Will is not the last Will of the deceased;
- the person making the Will lacked the capacity to make the Will at the time the Will was made – for example, where a testator is unable to understand that he/she is making a will, or identify their assets or those for whom they are obliged to provide, or is affected by a disorder of the mind that affects the making of the Will;
- the Will was made under undue influence or pressure – for example, where a testator is coerced via physical or psychological threat to distributing their estate in a particular manner; and
- where the Will was made by fraud or forgery – for example, the alteration, creation or signing of a Will by someone other than the testator without the testator’s knowledge or approval;
- the Will is not executed in accordance with part 2.1 of the Succession Act 2006; and
- the testator revoked the Will during his or her lifetime.
The Wills and estate lawyers at TDP are experienced in these areas and can assist you in your decision to challenge the validity of a Will or advise you with regard to avoiding challenges to your own testamentary intentions.
Who can challenge the validity of a Will?
In NSW only persons with “standing” can challenge the validity of a Will. Those with standing- or the right to challenge a Will are limited to persons who:
- are named as an executor or beneficiary in an earlier Will of the deceased;
- are named as an executor or beneficiary in the deceased’s last Will, or
- would be a beneficiary under intestacy law in NSW.
How long do I have to challenge the validity of a Will?
There is no time limit for challenging a Will. Notwithstanding, if you are thinking of challenging a Will, you should act promptly. It is preferable that any application to challenge a Will is made before Probate is granted and before the executor has dealt with the assets of the Estate.
If you intend to challenge a Will after Probate has been granted, you will need to show strong grounds for revoking the grant and explain why you failed to prevent Probate being granted in the first place.
Please note that challenging a Will is not the same as contesting a Will. Contesting a Will or a family provision claim has strict time limits to bring a claim.
What happens if a challenge to the validity of a Will is successful?
If a challenge to a Will is successful, the Will is “set aside”. That is, the Court treats the Will as if it never existed. Therefore, none of the clauses in the Will operate, and the estate of the deceased is dealt with according to the most recent Will if one exists, or under the law of intestacy (death without a will). In the latter circumstance, the laws of intestacy provide how the deceased estate is to be distributed and include provisions for specified persons in a defined order regardless of the intentions of the deceased.
In both cases our experienced wills and estate lawyers are able to assist you to determine any benefit to which you may be entitled. Get in touch with our team here.