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The difference between Challenging a Will or Contesting a Will?

Challenging a Will involves questioning its legitimacy. Grounds for this include doubts about the testator’s mental state at the time of signing or suspicions of the Will being fraudulent.

To differentiate between challenging and contesting a Will: Challenging a Will involves questioning its legitimacy. Grounds for this include doubts about the testator’s mental state at the time of signing or suspicions of the Will being fraudulent.

Contesting a Will, on the other hand, is about disputing its contents. It is based on the belief that the Will fails to provide sufficiently for someone with a close relationship to the testator.

In contesting, the individual seeks judicial involvement to ensure equitable distribution of the estate.

Challenging a will in NSW

Challenging a Will typically falls into three categories:

(a) Capacity; (b) Undue influence; and (c) Provision

Capacity: The contention here is that the person who created the Will, known as the testator, may not have had the mental capacity to understand the implications of their actions when the Will was executed.

If compelling evidence indicates that the testator lacked the necessary capacity to create their Will, it opens the possibility to contest its validity.

Should such a challenge prevail, an earlier Will might be reinstated. In the absence of a legitimate preceding Will, intestacy laws would take effect.

To establish incapacity, robust evidence is required. Being excluded from the Will, by itself, does not suffice.

However, if medical records from the time the Will was drafted cast doubts on the testator’s capacity, and if the Will diverges from previous versions or the expected family dynamics, this could suggest potential incapacity.

Our team is ready to help you evaluate any evidence of the testator’s incapacity you might possess.

We will offer advice on additional evidence that may be necessary and assess the likelihood of your claim’s success.

Lack of knowledge and approval

Undue Influence: This refers to the possibility that the testator was coerced or excessively pressured by someone else when drafting the Will. The Will can be challenged on the grounds that the Will maker was unduly influenced in deciding how to make their Will.

However, this is one of the more difficult allegations to succeed in raising as the evidence must be capable of proving that the intentions of the Will maker were so overborne that they were coerced into doing something they do not want to do.

Provision: The issue here arises if the testator failed to provide sufficient inheritance, or none at all, to you as a potential beneficiary.

If you are entitled but received less from the estate than other beneficiaries, you might have grounds for a claim. It is crucial to confirm your status as an eligible beneficiary (refer to the earlier provided definition).

As an eligible beneficiary, you must evaluate if your inheritance is sufficient, considering various factors such as your financial circumstances and your relationship with the deceased.

Our team is ready to provide further details on the criteria considered by the court. We will support you in reviewing all pertinent evidence and help you assess the likelihood of successfully disputing a Will you believe to be unjust or unreasonable.

The validity of these claims’ hinges on the specific details of each case and the supporting evidence available.

Our team can offer guidance on the strength of your claim. For Will makers, we can provide counsel on crafting a Will that minimises the likelihood of future disputes.

Where a Will maker has had a falling out with a child or children and wishes to exclude them from an inheritance, the question often posed is, can I cut them out of my Will?

This is an unfortunately common question and disinheriting a child is a complex matter, hinging on numerous details and the specific situation at hand.

For instance, a financially secure adult child may face challenges in challenging the parent’s Will, especially if their siblings are in less fortunate financial situations.

Similarly, an adult child who has been estranged from the parent for three decades might struggle to argue that they were insufficiently considered in the Will.

These instances represent two contrasting scenarios. Typically, no single factor can definitively prevent a claim. It is advisable to at least document your rationale for omitting a provision for your child.

This can be undertaken by way of a s50 declaration which should remain with your Will. Our team can support you in this process and advise on which aspects are important to note.

Nonetheless, it is important to understand that documenting reasons does not completely safeguard against the possibility of the Will being disputed.

However, the existence of a s50 declaration, provides the parties and/or the Court with background information directly from the testator stating the testator’s position on the issue.

If you are an executor, we can also advise on defending against such claims. Executors or administrators often face the task of defending an estate. Challenges to the deceased’s Will can arise for numerous reasons.

Additionally, claims might be lodged under family provision laws, or disagreements may occur concerning the estate’s management.

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Important Notice

This article is provided for general interest and informational purposes only. It contains general information and is not tailored to individual circumstances. It does not constitute legal advice and should not be relied upon as such. Always seek the advice of a qualified legal practitioner for specific legal advice tailored to your needs and circumstances. While every effort has been made to ensure the accuracy of the information at the time of writing, applicable laws may change.

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Let us help you create your Legacy your way or let us champion your cause. Book your free 30-minute telephone consultation today, or just call our Director on 0481 523 372 between 7am and 10pm (Monday to Friday) or email at info@championcontestedwills.com.au

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