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Challenging a Will in NSW: The Process

Can you challenge a will in New South Wales NSW? If you suspect that a will hasn’t been validly made, it’s crucial to understand your options and the legal landscape surrounding will challenges.


Understanding Will Challenges

To challenge a will is to contest the validity of the document itself, and if successful, the entire will is set aside. This legal action is distinct from Family Provision claims, which pertain to disputes over a person’s share under the deceased’s will.

Bases for Challenging a Will

In most cases, the basis for challenging a Will often relates to the following:

  • Undue Influence
  • Fraud
  • Forgery
  • Lack of Testamentary Capacity
Commencing Proceedings in NSW

When challenging a will, individuals initiate proceedings in the Supreme Court of NSW. This legal step marks the beginning of a process that can be intricate and demanding.

Who Can Challenge a Will in NSW?

Typically, those challenging a will include:

  • Beneficiaries named in a previous will.
  • Beneficiaries named in the most current will.
  • Persons considered eligible if the deceased left no will (due to its invalidity).
Time limits for will challenges in Australia…

A will can be contested before or after the Supreme Court issues a grant of probate. However, challenging a will becomes more challenging once the estate administration is underway.

Taking Action

If contemplating a will challenge, it’s advisable to check for published notices related to the estate’s administration, such as:

  • Notice of Intention to file for Probate
  • Issuance of a Grant of Probate
  • Notice of Intention to Distribute the Estate

You can make inquiries through the NSW Online Registry or by directly contacting the Supreme Court.

Filing a Caveat

Consider filing a caveat over the estate to halt the administration or prevent the court from granting probate during the challenging process.

Initiating court proceedings

If the parties cannot reach a resolution, they must initiate court proceedings by filing a Summons or a Statement of Claim in the Supreme Court.

Complexities of court proceedings

Legal actions related to deceased estates are inherently complex, often relying on decades-old evidence. Both parties must prepare affidavits supporting their claims or defences, which a judge will review to make a determination.

Consideration of costs

The courts hold discretion on cost responsibility. Generally, the successful party may be entitled to an order for the unsuccessful party to pay ordinary costs, ranging from 60% to 75% of the actual costs.

Contact Access Law Group

Given the complexities involved, seeking appropriate legal advice before initiating any legal actions is crucial. For a fixed fee discounted initial consultation, you can contact the ALG team at (02) 4220 7100 or via email at lawyers@alg.com.au.