Validity of a Will. Differences in NSW

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Eric Butler.  Free Call: 1800 960 156   Email: [email protected]

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.

What’s different in NSW?

The law relating to challenging a will in NSW is the same for all Australian States. The same principals apply wherever you are, NSW, Victoria, Queensland or any other State. In other words the law is the same.

The only difference between States may be the judges who could have a different view matters and the particular court process are slightly different from State to State.

However, please note, the law relating to contesting a will in each State is different. Remember, ‘challenging a will’ is challenging the validity of the Will itself whereas ‘contesting a will’ is family provision law.

So, to commence proceedings to challenge a Will there are two possible paths as follows; 

  1. The challenger may file a caveat in the Supreme Court registry thereby temporarily stopping probate from being granted. If the court does not order the caveat to be removed, the executor/s will be required to file a ‘Statement of Claim’ setting out the basis upon which they will prove the will is valid. Later at a hearing they will present evidence to support the ‘Statement of Claim’.
  2. The challenger will then be required to file a ‘Defence’ to the ‘Statement of Claim’ setting out the basis of the defence and later at a hearing provide the evidence to support the allegations.
  3. If no caveat is filed then either the challenger or the executor/s may file a ‘statement of claim’ in support of their beliefs and the other party will file a defence to that ‘statement of claim’.

Remember you are challenging the validity of a document, a Will.

Let's look at a few examples. 
Lack of capacity to make a will:
A Will can be challenged if you can prove that the will maker lacked the mental capacity (testamentary capacity) required to make a valid Will. To commence proceedings on the these grounds  you must first prove; Senility; Some other form of medical condition which would result in them having a reduced mental capacity which we see frequently as we grow older.

However, you must be aware that extreme age or illness is not of itself conclusive evidence of incapacity to make a Will.

Proving that the will maker lacked the mental capacity required to create a valid Will requires that you can show that they did not understand the consequences of creating a Will at the time of it's creation. The law is very clear on this point. The judges have constantly referred to four items for consideration which started with the case of Banks v Goodfellow. The will maker must understand what he or she is doing. It is essential that the will maker

[a] understands the nature of the act of will making and its effects;

[b] understands the extent of the property of which he or she is disposing in the document;

[c] is be able to comprehend and appreciate the claims to which he or she ought to give effect; and with a view to that object;

[d] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

Lack of knowledge and approval:

Everything else might be in order however there have been many cases where the will maker simply did not give approval to what was in his or her will. A great example is with a long and complicated will. I have seen thousands of will and every now and then I come across one that even I find have found hard to understand. Pages and pages long and unnecessarily complicated. There is no way some will makers would understand all of the terms in such a will.

Undue influence:

This is extremely hard to prove. This is primarily because the will maker will not be present during and court proceedings to give evidence and also the onus of proving the allegation rests with the applicant wishing to set aside the will.

Common sense does not prevail in these cases. You and I might really believe there is sufficient evidence to prove someone influenced the will maker. The problem in these cases is that the standard of proof is different to ordinary cases involving one person improperly influencing another. There are many cases where one person has a duty not to influence another. Sometimes family relationships or solicitor and client relationships and other types where there is potential for a conflict of interest. Could be your accountant, real estate agent all depending upon the particular circumstances.

However the main point is this;

Cases involving people who are still alive are different. The standard of proof of an allegation in that case will almost always be different to a case involving a deceased person. Often the onus of proof rested with the person being accused and he or she must defend the allegation and sometimes prove their innocence.

With deceased estates it is the opposite. The accuser must prove their case.


A Will can be challenged if it can be proved that the Will was procured by fraud. Fraud can occur when the will maker has been mislead into signing the document. Cases have been such as putting a different piece of paper in front of a person asking them to sign but he or she not knowing it was a will they were signing.

Another example of fraud has been a person copying documents and mixing the content to arrange the wording such that it changes the actual will.


This category really speaks for itself. Every one knows what forgery is. However the usual rule applies. It may not always be easy to prove a forgery.The burden of proof (again) is on the person alleging the forgery. These cases nearly always involve forensic expert evidence to prove the forgery. 

Commencing proceedings: 

It is best to commence proceedings before probate is granted. However it certainly is possible to make an application to the court to revoke an earlier grant of probate and seek an order that the will is invalid.

Other Differences in New South Wales 

Hereunder I will summarise various facets of Challenging a Will in NSW  which differs slightly from other Australian States. As I have mentioned in other pages on this site the law is much the same in all Australian States however the specific wording in the legislation of each State can be a trap for lawyers and their clients Challenging a Will. Judges in court proceedings are very often limited in their determination of a case by the precise wording of the legislation or a practice note of a particular State. 

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.

Eric Butler: 1800 960 156 

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

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Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 13, 111 Elizabeth Street ,
Sydney NSW 2000


Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 11, 456 Lonsdale Street,
Melbourne VIC 3000


Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 10, 239 George Street,
Brisbane QLD 4000


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