Facing the death of a loved one can be challenging and emotional. However, it can be even more difficult if you believe their estate distribution needs to be more fair and just. If you are a family member or a beneficiary who feels that a Will does not reflect the deceased’s true wishes, you may be able to contest the Will.
Contesting a Will is a legal process that one can initiate if they were not part of a Will or by those who believe it did not adequately provide for them. There are several grounds for contesting a grant of probate NSW. In this blog, we will explore some of these grounds in detail.
What are the Grounds for Challenging a Grant of Probate?
1. Lack of Testamentary Capacity
A lack of testamentary capacity is among the most common grounds for contesting a Will in NSW. It means that the deceased did not have the mental ability to understand the nature and effect of making a Will during its making. It can occur if the deceased had a mental illness or dementia or was under the influence of drugs or alcohol when making the Will.
To prove a lack of testamentary capacity, the person challenging the Will must provide evidence that the deceased did not understand the extent of their assets, the claims of those who would usually be expected to benefit under the Will or the effects of making a particular Will. It can involve providing evidence from medical professionals who treated the deceased, as well as evidence from witnesses who were present when during the making of the Will.
2. Undue Influence
Undue influence occurs when the deceased is coerced or pressured into making a Will that does not reflect their true wishes. It can involve situations where the deceased was manipulated or threatened by a family member, friend, or caregiver, resulting in them making a Will favouring that person over others who should have benefited.
To prove undue influence, the person challenging the Will must provide evidence that the deceased was subject to coercion, pressure, or intimidation, resulting in them making a Will that does not reflect their true wishes. It can involve providing evidence from witnesses who were present during the making of the Will and evidence of any unusual circumstances or changes in the deceased’s behaviour that suggest they were subject to undue influence.
3. Fraud
Fraud occurs when someone misleads or deceives the deceased to make a Will that does not reflect their true wishes. It can involve situations where the deceased received a false or misleading document or when someone forged their signature on the Will.
To prove fraud, the person challenging the Will must provide evidence that someone was misleading or deceiving the deceased, resulting in them making a Will that does not reflect their true wishes. It involves providing evidence of any false or misleading documents that the deceased received and evidence of any suspicious circumstances surrounding the making of the Will.
4. Improper Execution:
One can challenge a Will if it has yet to be signed or witnessed per the legal requirements. In NSW, the testator must sign a Will in the presence of two witnesses who are both present simultaneously. To prove improper execution, the person challenging the Will must provide evidence that the Will was not signed or witnessed under the legal requirements.
5. Family Provision Claims:
Under the Succession Act 2006 (NSW), certain family members and dependents are entitled to claim further provision from the estate if they believe that they have not been adequately provided for in the Will. It includes spouses, de facto partners, children, and dependents of the deceased.
To make a family provision claim, the person must show that they require further provision from the estate and that the deceased did not make adequate provision for them in the Will. It can involve providing evidence of any financial or other needs that the person has and proof of any contributions they made to the deceased’s life.
6. Mistake:
One can also challenge a Will if one can show that the deceased made a mistake in the Will. It can involve situations where the deceased made an error in the distribution of their assets, such as accidentally leaving out a beneficiary or creating a mathematical mistake in allocating investments.
To prove a mistake, the person challenging the Will must provide evidence that the deceased made an error, resulting in an unfair distribution of assets. It involves proof of any changes in the deceased’s circumstances affecting the asset distribution and evidence of any communications between the deceased and beneficiaries.
7. Duress:
Duress occurs when someone forces or threatens the deceased to make a Will that does not reflect their true wishes. It can involve situations where the deceased was physically or emotionally threatened or coerced into making a Will favouring one person over others.
To prove duress, the person challenging the Will must provide evidence that the deceased was subject to physical or emotional pressure and that this pressure resulted in them making a Will that does not reflect their true wishes. It involves evidence from witnesses present during the WIll’s making and evidence of any unusual circumstances or changes in the deceased’s behaviour that suggest they were subject to duress.
Conclusion
Contesting a Will in NSW can be a complex and emotional process, and it is crucial to seek legal advice if you are considering challenging a Will. The grounds for contesting a Will include lack of testamentary capacity, undue influence, fraud, improper execution, family provision claims, mistake, and duress. Understanding these grounds and seeking the right legal advice is crucial. To learn more about probate laws or inheritance tax in Australia, speak to experts at Probate Consultants today!
