The law recognises that assuming a person has testamentary capacity, such person (ie- the testator) has the right/freedom to deal with their estate (ie- give away his or her property by Will) as they see fit. Whist other people may disagree with the terms of a person’s Will or have an expectation which is not fulfilled by the Will, this is irrelevant in the eyes of the law. The Succession Act 2006 (NSW) is designed to protect those to whom the deceased person had a moral responsibility/obligation.
When can a Will be challenged?
A Will can be challenged/disputes arise in such circumstances including in following:
§ The testator did not have the testamentary capacity (ie- mental capacity) to understand what he/she was doing to make a Will at the time it was signed
§ When someone who should have been provided for has been left out of the Will.
§ Where the testators intentions are unclear
§ The testator did not make the Will freely or the testator’s decisions were influenced by others
§ The will is grossly unfair
§ Parts of the Will were changed after the testator signed it
§ When people who are dependant upon the deceased person (either partially or fully) such as spouses, de factos, children (including adopted children), ex spouses, grandchildren and/or dependants have been excluded or they believe they have not been left a fair share of the testator’s assets
Are there time limits in contesting the Will?
You only have a limited time from the date of the death of the testator to apply to the Court to challenge the Will which is 12 months from the date of death in NSW.
Who can apply?
Only those persons who, the Court determines is an “eligible person” is eligible to apply to a Court for an Order that provision be made for a person’s maintenance, education or advancement in life from the deceased person’s Estate which can include:
§ The husband or wife at the time of the deceased’s person’s death
§ A person with whom the deceased person was living in a domestic relationship at the time of the death
§ A child of the deceased person or, if the deceased person is living in a domestic relationship at the time of death, a child of that relationship
§ A former husband or wife of the deceased person
§ A person who was, at any particular time, wholly or partly dependant on the deceased person, and who was, at any time, a member of a household of which the deceased was a member
§ A grandchild of the deceased person who was at any particular time, wholly or partly dependant on the deceased
This is a complex area of the law and you should consult Rockliffs Solicitors who have experience in challenging Wills/Estate disputes.
Often the legal fees of challenging a Will are paid out of the Estate of the person who has died.