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In New South Wales, there are several grounds that someone can contest or challenge the validity of a Will. The grounds are:
- Lack of testamentary capacity – Where the testator (that is, the Will-maker) lacked the requisite capacity required to make a Will;
- Lack of knowledge and approval – Where the testator was not aware of the contents of the Will and did not approve of it;
- Undue influence – Where the conduct of another person had overborne the will of the testator and the testator was effectively coerced into making the Will; and
- Fraud – There was misleading or deceptive conduct (such as statements that were wilfully false, or material that was suppressed with the intention of benefiting oneself under a Will) that misled the testator into executing their Will.
More than one ground can be raised, and each one will involve examining the Will in question and the evidence available at the time the Will was executed, including medical records, file notes and evidence from people who had contact with the testator, such as family, friends and neighbours. Not every ground will be available in every matter and the likelihood of success of a Will being contested or challenged depends on the individual circumstances of each case.
Family Provision – Even if the Will is valid, it can sometimes be contested on the grounds that inadequate provision has been made for the claimant. This type of claim is referred to as a “Family Provision” claim.
For more information about contesting or challenging a Will, please contact us.
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Disclaimer: This post contains information of a general nature only and is not intended to be used as advice in relation to a specific matter. Although every care has been taken in preparing the document, it may not be accurate or complete, particularly in the context of specific circumstances. MJM Lawyers disclaims responsibility for any errors or omissions.
