Challenging a Will

Summary by Eric Butler... Free Call: 1800 960 156    Ask by email: [email protected]

If you have been left out of a will please go to our "Contesting a Will" page.

However if you wish to challenge the validity of a will you are on the correct page.

 Testimonials. 

Who pays the Legal Fees and How Much will it cost?  

Challenging a will is not the same as contesting a will or disputing a will.

Challenging is all about whether or not the will itself is valid. The law relating to whether or not a will is valid at law is strictly a matter of factual evidence. The judges do not have the discretion they have in a family provision case.The person challenging a will needs to prove to the court that the will is invalid.

A will maker may make several wills during his/her lifetime especially as one gets older or nearer to death. The court may be required to look at several of those wills during a case especially the wills near death. The court process is to determine which one of the last lot of wills is valid.

Proving the Validity of a Will

Most cases involve elderly will makers in circumstances where allegedly someone is trying to take advantage of them. It is not uncommon for elderly will makers to be taken advantage of by family members or so called friends or carers, however the problem we face as family members and lawyers is actually proving that at law the will involved was not valid. The onus of proof is almost always upon the person alleging the invalidity.

Mental Incapacity

Let’s take the example of an alleged mental incapacity case such as alleged dementia and say a case of a will maker in his/her late 90’s. In New South Wales, a carer, friend or other family member may organise the will to be signed (in their favour) when the will maker is not really in a position to understand and approve the will. Another example is the will maker being paranoid or delusional and making a will that's influenced by their delusions to the effect he or she did not possess the required mental condition at law to be able to make a will.

Other family members may be aware that the elderly will maker has dementia but it’s not until the will maker dies that they are confronted with the new will. Then the family members need factual evidence to prove the will maker lacked mental capacity at the time the will was signed and that evidence may not be available.

The evidence required to convince a court that a will maker lacked the required mental capacity must be factual. If the will maker was absolutely clearly medically unable to approve that may not be too difficult a case. However when the mental incapacity is not so clear the evidence must be around the time the will was signed and often that evidence is hard to find. Doctors in NSW often give evidence of what they observed many months or even years before the signing of the will but if the patient (will maker) was ‘in and out’ of mental capacity from time to time the doctors evidence may be uncertain and insufficient to prove the will makers lack of knowledge and approval.

Family members may be absolutely convinced their mother or father did not have mental capacity at the time the will was signed but simply cannot convince a court because there is insufficient factual evidence to convince a judge.

Undue Influence

Let’s take the example of a case of alleged undue influence being placed upon the will maker. There have been very few successful cases in Australia over the past 100 years because they are particularly difficult to prove unlike for example a case of undue influence upon a living person (who may be able to give evidence about the facts himself/herself).

As lawyers we know of many cases where family members have influenced the will maker to make a will in their favour. The problem we face however shocks many people. It is not against the law to influence a will maker. It is only against the law (making the will invalid) if the influence involved actual duress. In other the words the process involved actual force mental or physical and that the will maker was not later able to revoke the will and reverse the contents forced upon him/her.

It is difficult to prove that the Deceased person was influenced to make their will because they are not able to provide evidence to the court that influence was exerted upon them. Sometimes there are no witnesses to a person being influenced to make their will and that might mean that there is no evidence available. It is not enough to simply prove to the court that a person had the opportunity to exert influence over a deceased person, you need to prove that influence was actually exerted. 

Fraud and Forgery

Cases involving fraud and forgery also require factual evidence. For example a person committing fraud may obtain the signature on a will by telling a blind or partially blind person that the document they are signing is some other document when in fact it was their will. 

Another example is cases involving forgery where a person committing forgery forges the will maker’s signature. Both of such examples require factual evidence sufficient to convince a judge however, unlike alleged mental incapacity or alleged undue influence, luckily there days we have access to forensic professionals who are experienced in actually providing evidence from imprints on paper and comparisons of signatures that do convince a court of foul play.

Understanding Legal Fees

The big issue in these cases is the legal costs involved. Unlike family provision cases, there is very little discretion by a judge (at the end of a case) when considering who should pay the legal fees. There is always a huge risk of losing a will challenge case no matter how much evidence you think you have. The law, with few exceptions, is that the legal fees of both claimant and defendant are to be paid by the loser.

One exception to that rule is if the judge considers that proceedings although unsuccessful were really commenced as a result of something the deceased had done that caused those proceedings to be commenced and for the need of a judge to make a determination. 

Challenging a will: Step by step.

After selecting an experienced NSW solicitor (preferably a wills and estates accredited specialist) you will provide him or her with information about the deceased, the will/s of the deceased and some details of the beneficiaries named in the will/s. There may be several wills involved and your solicitor will know what to ask you and what documents for you to provide. 

Experienced solicitor.

An experienced solicitor will give you some advice about the process involved in either challenging a will or defending a will in NSW. However at this stage he/she will not be in a position to give you any idea of the likely outcome of the case. Your solicitor will be unable to give you any advice in that regard until much more evidence is obtained from witnesses and from documents.

Standing to apply.

If you intend challenging the last will of the deceased you can only do so if you are named as a beneficiary in an earlier will or you would be entitled to a portion of the estate under the rules of intestacy (where there is no will).This called having standing to apply.

When you produce all the evidence to your solicitor he/she will give you some advice about the prospects of success and you then need to make a decision as to whether or not you want to stop probate being granted and challenge the validity of the will. If you decide to challenge the will, whilst there is no real time limit for you to do so it is far better to make the challenge before probate is granted.

Don't delay.

Whilst you are discussing challenging the will, the executor/s named in the will may be preparing an application for probate (proof of the will). The executor/s may not know you have been investigating the validity of the will and they may apply for probate depending upon the complexity of the estate assets, say within two or three months. However there is no reason why an application could not be made within say 28 days.

After probate.

If probate is granted before you make your application you are still able to make your challenge to the validity of the will by making an application to revoke the grant of probate. However this is not the preferred method. The preferred way to challenge the validity of a will is to lodge a caveat at the probate office of the Supreme Court thereby preventing probate being granted until either there is a determination by a judge or you withdraw you caveat. 

Lodging a caveat.

If you lodge a caveat you must be prepared to go to court possibly within days or weeks to answer a summons as to why your caveat should not be removed. You, your solicitor and barrister will be required to attend court before a judge of the Supreme Court and provide evidence sufficient to show some doubt as to the validity of the will. If the judge agrees with you he/she will allow the caveat to remain in place until the executor/s makes the application for probate in the form of a Statement of Claim attempting to prove to the court that the will is indeed valid.

If your caveat you lodged was found to lack merit (the judge believed there was no doubt about the validity of the will) you would be liable to pay the costs of the proceedings to that point. Also, if after lodging the caveat you later (before the caveat hearing) decided you wanted to withdraw the caveat you would be liable for the executors costs incurred to that point, if any.

Judge allows caveat.

The fact that a judge has allowed your caveat to remain in place preventing probate without a hearing does not guarantee you will win the final hearing. Now every case is certainly not black or white. You and the opposing executor/s (other beneficiaries) may realise there is room for compromise and wish to settle the dispute out of court.

Court approval.

However, you cannot decide on the validity of a will between yourselves or your legal advisers. If you come to an agreement about the validity of the will on legal grounds your legal team may present the facts to a judge and attempt obtain his/her approval as to the validity of the will. If the judge agrees he/she will make orders as to the proper administration of the deceased estate.

Preparing evidence.

If the challenge is not settled each side will prepare their case for hearing before a judge. Evidence can be from individual witnesses such as family members, doctors, solicitors, handwriting experts and others. Hearings of this nature are often over a few days and are nearly always very expensive. They involve a lot of preparation in addition to the days in court. Generally the loser pays. The exception to the rule is if the judge considers the proceedings were required because of the fault in some way of the will maker.

Give me a call anytime.

I will personally answer the phone. I'm happy to discuss with you the three (3) most common mistakes made by will dispute contestants that can lead to long delays, huge legal cost and an unhappy end. No cost, no obligation. Choose me to represent you or not, at least you will have the knowledge to start on the right track.

 

ALPMA Law Society of NSW STEP Law Society of New South Wales Queensland Law Society Law Institute Victoria

We are always available for a free no obligation discussion
1800 960 156

Sydney

Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 57, MLC Centre,
19-29 Martin Place
,
Sydney NSW 2000
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Melbourne

Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 21, 570 Bourke Street,
Melbourne VIC 3000
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Brisbane

Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 27, Santos Place,
32 Turbot Street
,
Brisbane QLD 4000
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Newcastle

Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 1, 45 Hunter Street,
Newcastle NSW 2300
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