What is a Will dispute? Generally, a Will dispute occurs when a person challenges or contests a Will. Challenging a Will means challenging its validity; contesting a Will means claiming you are eligible to receive more portion of the deceased's estate.
The Succession Act 2006 deals with New South Wales (NSW) laws pertaining to Wills. This article discusses Will disputes and challenging and contesting Wills in NSW.
Challenging a Will in NSW
One must take into consideration the following queries before challenging a Will:
- Does the Will satisfy the formal requirements of the Succession Act 2006?
- Did the Will-maker have the testamentary capacity to make the Will?
- Was the Will altered after it was originally signed?
- Did the testator make the Will under undue influence from someone?
Not just any person can challenge a Will. In NSW, a person can challenge a valid Will only if they have standing (or the right to challenge the validity of a Will), such as:
- A person named as a beneficiary in an earlier Will,
- A beneficiary in the deceased's last Will, or
- A person who would have been a beneficiary under NSW laws, but there is no mention of them in the Will.
It is crucial to note that there is no time limit for challenging a Will. Whereas, there are strict time limits for contesting a Will.
Grounds for Challenging a Will
Lack of Testamentary Capacity
Lack of testamentary capacity is essentially the lack of mental capacity. McMillan J in Re Jones  VSC 273 explains the concept of "testamentary capacity":
To prove a testator had testamentary capacity, the Court must be satisfied that the testator:
- understood the effect of making a Will,
- was aware of the general nature and value of the the estate's costs,
- was aware of those who would have a natural claim for further provision from the deceased's estate, and
- was able to evaluate and discriminate between such claims.
- This means that the Will-maker must be mentally competent and understand the legal effects of a Will. The Will-maker should be aware of the costs, the extent of their assets and the persons expected to benefit from the estate. Hence, if the Will-maker was not mentally competent at the time of the execution of the Will, parties can challenge the Will.
Undue influence refers to situations where a third party pressurises the Will-maker to write the Will in a way that goes against their true wishes. Undue influence includes psychological or physical threats, as well as intimidation, deceit, or blackmail. This ground commonly occurs when a third party forces the Will-maker to name them as a beneficiary.
However, persuasion is not enough to establish undue influence [Coles v Reynolds and Another (2020)]. You need to provide evidence that there was coercion in certain circumstances, such as any witnesses to coercion at the signing of the Will.
Wingrove v Wingrove (1885) sets the standard for undue influence cases in Australia. Often cited is Sir James Hannen's statement to the jury about coercion:
"The coercion may, of course, be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may become so weak and feeble that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage or illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness' sake, to do anything. This would equally be coercion though not actual violence."
The Court also considers circumstances surrounding the making of the Will to ensure that the Will-maker indeed knew and approved of its contents.
Examples of suspicious circumstances include:
- The testator leaving their entire estate to a person unknown to the Will-maker's family members and friends,
- A significant and unexplained change in the division of the estate,
- A child disinherited, but with no estrangement or change in the relationship with the Will-maker,
- The Will was prepared by someone other than the deceased, or
- The Will is significantly different compared to any previous Wills drafted by the Will-maker.
In cases of suspicious circumstances, the burden of proving that the Will-maker knew what they were signing falls on the person trying to uphold the validity of the Will.
One must provide evidence that someone else signed the Will to challenge the validity of a Will on the grounds of forgery.
Contesting a Will: Family Provision Claim
If a Will in NSW is deemed valid and legal, but a loved one or family member feels they don't have an adequate provision and deserve more claims to the estate, they can contest a Will by making a family provision claim.
To make family provision claims in NSW, a person must be listed as an eligible person under Section 57 of the Succession Act 2006. Eligible persons for a family provision application include:
- The Will-maker's spouse at the time of their death,
- The Will-maker's de facto partner at the time of death,
- The Will-maker's children,
- Any of the Will-maker's ex-spouses,
- Any person who was dependant on the Will-maker at the time of their death, and
- Any person who was living in a close personal relationship with the Will-maker when they died.
Eligible persons for family provision cases have twelve months to contest a Will, and the court considers various factors in determining whether to make a family provision order. Under Section 60 (2) of the Succession Act 2006, matters the Court considers include:
- The relationship between the deceased and the applicant,
- If the deceased person had obligations to the applicant and other beneficiaries of the estate,
- The nature and extent of the estate including any liabilities,
- The mental and physical health of the applicant including any existing disabilities,
- The current financial position and present and future financial requirements of the applicant and other beneficiaries,
- The applicant's age,
- If the applicant contributed to the deceased's welfare or to the improvement of the deceased estate before death,
- Any evidence of the deceased's intention to provide for the applicant, including any statements made by the deceased, and
- The applicant's character and conduct before and after the Will-maker's death.
How Is a Will Dispute Resolved?
The Supreme Court of NSW governs the jurisdiction of Will disputes and provides information on resolving them. Ways to resolve a Will dispute include:
- Agreement - These are arrangements between the claimant and the executor. Will dispute lawyers can help with agreements and see if parties agree with the proposed arrangements.
- Mediation - Courts require parties to undergo mediation to solve a Will dispute. Often, mediation resolves a Will dispute instead of court proceedings.
- Court hearing - The court process occurs when parties or beneficiaries continue to disagree about a Will during mediation. Judges will then make the decision as to how much each party is entitled to receive from the Will.
Seeking Legal Advice from Expert Will Dispute Lawyers
The grounds mentioned above for challenging a Will are not exclusive. It may be challenged in other situations such as inconsistencies in the Will's contents. Perhaps you are an eligible party or a surviving joint tenant of the deceased.
One may not always successfully challenge or contest a Will, hence, it is highly advisable to hire Will dispute lawyers to help with your legal matters.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.