Challenges to your Will

There are at least sixteen (16) ways a Will can be challenged. In this article we discuss
the sixteen (16) ways for contesting a Will as well as the bases for making a challenge.
Persons thinking of making their Will may not be aware that their intentions for the
distribution of their estate after death can be thwarted for various reasons, as set out

  1. Family Provision Claims by Eligible Persons Under the Succession Act 2006
    The Succession Act 2006 (NSW) makes provision for certain family members to
    challenge a Will, on the grounds it left the claimant without adequate provision for his
    or her proper maintenance, education or advancement in life.
    The claimant must prove the Will fails to make such provision, based on his or her
    circumstances at the time of the hearing, and generally means financial needs.
    ‘Eligible person’, in relation to a deceased person under section 51 of the Succession
    Act 2006 (NSW) means:
  • Spouse at death of deceased;
  • De Facto spouse at death;
  • Child of deceased;
  • Former spouse;
  • A person:
  • Who was, at any time, wholly or partly dependent on the deceased; and
  • Who is a grandchild of the deceased or was, at any time or at any other
    time, a member of the household of which the deceased was a member;
  • A person with whom the deceased was living in a close personal
    relationship at the time of death.
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  1. Lack of Testamentary Capacity
    To have the necessary testamentary capacity a person must, according to Banks
    v Goodfellow (1870) LR 5 QB 549, 565:
  2. Understand the nature and effect of the Will;
  3. Understand in general terms the nature and extent of the property;
  4. Comprehend and appreciate the claims to which they ought to give effect;
  5. Weigh the respective strengths of those who may have such claims; and
  6. Not be suffering any delusions with regards to those people that should be
    considered when making the Will.
    If a testator or testatrix is deemed not to have had the mental capacity at the time
    instructions were given, or upon execution of the Will, then it is invalid.
  7. Lack of Knowledge and Approval
    The testator or testatrix must know and approve of the contents of their Will. Prima
    facie a properly executed Will carries a presumption that the testator or testatrix knew
    and approved of its contents.
    A lack of knowledge and approval of the Will contents may occur either through fraud,
    mistake or the delegation to another to determine and draft the contents of the Will.
    Will challenges must raise a suspicious circumstance concerning the execution of the
    Will. A person seeking to uphold the Will must prove that there was knowledge and
    approval of the Will’s contents. Ultimately the burden is on the challenger to prove their
  8. Fraud
    Fraud involves fraudulent conduct by a beneficiary, either by misleading a testator or
    testatrix into giving them an unwarranted benefit or preventing a benefit being given
    to another person. The alleged conduct must directly influence the testator or testatrix
    for the sole purpose of creation or prevention of that benefit.
    Fraud is not concerned with the overpowering of volition as in undue influence, but
    rather with misleading or deceptive conduct – instilling in the mind of the testator or
    testatrix false and delusive notions.
    The party alleging fraud must produce evidence of their claim such as false statements
    or the suppression of material facts.
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    One common example of such conduct includes leading the testator or testatrix to
    believe they are signing something that is not a Will. Another is to mislead the testator
    or testatrix into making a Will that they would not otherwise have made.
  9. Undue Influence
    Evidence of undue influence must show coercion, rather than persuasion. It may
    consist of either psychological or physical threat and must result in the testator or
    testatrix making a Will against their wishes. The coercion must be so great that the
    resulting Will is inconsistent with intentions of the testator or testatrix.
    Undue influence can invalidate a Will in its entirety, rendering it inadmissible to
    probate, or invalidate just part of a Will. For example, a specific gift may be nullified
    leaving the remainder as a true reflection of the wishes of the testator or testatrix.
  10. Forgery
    There needs to be direct evidence that the Will was not signed by the testator or
    testatrix and that the signature is in fact a forgery.
    Australian courts have been reluctant to find a Will to be invalid without strong
    evidence, particularly so in cases of alleged fraud or undue influence.
    Motivated by self-interest, many allegations are found to lack substance and great
    care is required before embarking upon such a course of action as a cost order will
    follow an application found to have little merit.
  11. Revocation by A Subsequent Will
    Proof of a subsequent Will invalidates the earlier or penultimate Will.
  12. Informal Documents
    A document which does not comply with the formal requirements of a Will as to
    execution under section 6 of the Succession Act 2006 (NSW) but which purports to
    state the testamentary intentions of a person may be declared a valid Will under
    section 8 of the Succession Act 2006 (NSW) if the Court is satisfied that the person
    intended it to form his or her Will, or an alteration to his or her Will or a full or partial
    revocation of the Will.
  13. Automatic Revocation of a Will by Marriage
    Section 15 of the Succession Act 2006 (NSW) provides that a Will is revoked by the
    marriage of a testator or testatrix. The exception are:
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  14. A Will made in contemplation of a particular marriage.
  15. A Will that is expressed to be made in contemplation of marriage generally.
  16. Agreement to Make Mutual Wills
    A contract to make mutual Wills can be enforced, provided there is clear evidence of
  • That the Wills are not to be revoked; and
  • To enter legally binding relations.
    11.Implementation of a Will Depends on How, By Whom and What Assets Are
    Held at Death
    The provisions in a Will can only have effect if the assets held at death are in such
    form, quality, or ownership which enable distribution. The terms of the Will can fail
    where the assets are not held, or are held in trust, or in joint names, or by another
    entity, or where claims on the estate consume the assets.
    If a beneficiary predeceases the testator or testatrix and no substitute beneficiary is
    named, the estate can pass on as intestacy or a partial intestacy. Legislation specifies
    who will inherit, and these may not be persons intended.
    A Will should always take into account alternate positions depending on whether the
    testator or testatrix predeceases or survives beneficiaries.
  1. Construction Suits
    In a Will, where there is uncertainty or ambiguity as to meaning, the Executor or
    beneficiaries may apply to the Court to construe the Will.
  2. Charitable Gifts
    Gifts to charitable institutions should:
  • Ensure the charity’s correct legal name at the date of the Will is stated;
  • Provide for substitution if at death the charity ceased to exist, changed its name
    or amalgamated with another entity; and
  • Contain a general charitable intention to uphold the gift to such charitable
    institution which in the executors’ opinion most closely meets the objects and
    aims of the named charity.
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  1. Statutory or Court Authorised Wills
    An application to the Court before death but after loss of capacity of a testator or
    testatrix may be made on the basis the proposed Will is reasonably likely to be one
    the person would have made if he or she had testamentary capacity.
  2. Forfeiture Rule
    A person who unlawfully killed another is precluded from benefiting from the deceased
    person’s estate.
    The abovementioned ways in which a Will can be challenged arise from time to time
    in the course of the management of deceased estates and need to be borne in mind
    when considering the effectiveness of a Will after your death.
    We are committed to working with our clients to tailor our delivery of services
    on different levels. If you require assistance executing or updating your present
    estate planning documentation, please contact us on (02) 9191 9293 or email us