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Contesting a grant of probate

last will and testament

Contesting a grant of probate

You may be able to contest a Grant of Probate or Letters of Administration, either before the grant has been made by the court, or even after the grant has already been made.

1. The Will is not valid

There are certain regulatory provisions that cover the validity of a will. For example, a will will be invalid if it is not the most recently made will, if it was altered after signature, or was not executed according to the requirements under the legislation. Further, ambiguity over the language used in the will may lead to invalidity.

2. The maker of the Will did not have capacity or was unduly influenced at the time

Under the Successions Act 2006 (NSW), there are strict rules as to who can make a will. Although everyone over the age of 18 can make a will, they must have the mental capacity to do so. These are issues that often arise where the will-maker is elderly, ill or intellectually disabled.

Testamentary capacity refers to the capacity to understand what a will is, to be aware in general terms of what they are disposing of and to have the ability to make the moral decisions involved in will making. Where a person lacks the capacity to make a will, an application may be made to have a court authorised will made, or an existing will altered or revoked.

A will may also be challenged on the grounds of coercion by someone who stood to gain much from it. Where a person has exerted undue influence, in the form of pressure, force or fear, the will may be set aside. However undue influence is not easy to prove. Flattery and persuasion to a certain extent is not unlawful. The court will only overturn a will where the influence is to such an extent, that the will-maker’s intentions were not followed through. These types of claims are normally only successful where there was a witness present, and a claimant will need to provide much evidence of the coercion.

3. A later or earlier Will should apply

A will may be invalid if another will is found that was made at a later date.

4. The Will was forged

A will may be challenged if it is suspected that it was forged. However, as with undue influence, it can be difficult to prove that a will is forged. The onus on proving that it is forged lies on the challenger. This means that, if you intend to challenge a will on the basis of fraud, you will need to produce evidence to support your claim.

5. Removal of executor/trustee

Where the appointed executor/trustee is not fulfilling his or her duties as required by law and in accordance with the directions under the will, you may be able to apply to the court to revoke the grant of probate or letters of adminstration in their favour, and have another appropriate person appointed in their place.

Left Out of a Will or Unfairly Provided For?

Left out of a Will? Unfairly provided for?

If you have been left out of a will, or included in a will but are unhappy or feel that the will is unfair, you may be able to make an application to the Supreme Court for a Family Provision order in your favour. You can also make a Family Provision claim where there is no will, and you are not happy with the statutory intestacy provisions. This involves an assessment of, first, whether you are an eligible person, and, second, whether adequate provision has been made for you.

Eligibility

Those who may make a Family Provision claim may include:

  • the wife or husband of the deceased person at time of death
  • a person with whom the deceased person was living in a de facto relationship at the time of their death (including same sex partners)
  • a child of the deceased person
  • a former wife or husband of the deceased person
  • a person who was, at any particular time, wholly or partly dependent on the deceased person, and at any time a member of the same household as the deceased person
  • a grandchild who was at any particular time wholly or partly dependent on the deceased person
  • a person with whom the deceased person was living in a close personal relationship at the deceased person’s death

Time Limitations

There are time limitations in every state as to when a Family Provision claim can be brought. In NSW, an application must be lodged within 12 months from the date of death, and in other states it can be as little as six months. In certain circumstances, you may be able to apply to the court for an extension of the time limitation. The factors the court will look to in deciding whether to extend the time for bringing a Family Provision application include the sufficiency of the explanation for the delay, whether there will be any prejudice to the beneficiaries, whether there has been any unconscionable conduct by any relevant parties, and the strength of the applicant’s case. Read more about Family Provision Orders.

What is taken into account?

Some of the matters the court will take into account in determining whether to make a Family Provision order in your favour include:

  • your financial or other need
  • the size of the estate
  • the nature and duration of your relationship with the deceased
  • your character and conduct
  • any expressed testamentary intentions of the deceased
  • any obligation the deceased had to provide for you
  • any other matter the court considers relevant

It is important to note that the court will compare your circumstances with those of any beneficiary named in the will, or any other potential claimant, when making a Family Provision order.