There are many ways to challenge a Will. If a Will is successfully challenged, a Will can be set aside or varied – which can change who gets what in a deceased estate.
The main ways of challenging a Will are to allege undue influence, fraud, forgery, lack of testamentary capacity and/or bring an application under the Succession Act.
A Will may be set aside due to ‘undue influence’. A presumption of undue influence arises if it is proved that at the time the gift was made there existed a relationship between the donor and the donee of such a nature as to involve reliance, dependence or trust on the part of the donor resulting in an ascendancy on the part of the donee; and the gift is so substantial, or so improvident, as not to be reasonably accounted for on the ground of friendship, relationship, charity or other ordinary motives on which ordinary persons act.
The donee may rebut the presumption of undue influence, when it arises, by proving that the donor (a) knew and understood what he or she was doing; and (b) was acting independently of any influence arising from the ascendancy of the donee.
If it can be proved that the Will was procured by fraud, it may be set aside or varied. It might be argued that trickery or the making of false statements amounts to fraud. It is often difficult to prove fraud.
A document purporting to be the Will of the deceased might be a forgery. If this can be proved, the document may be set aside. A potential beneficiary may create a document and claim that the document is the last known testament of the deceased person. Expert evidence may be required to prove a forgery.
Lack of testamentary capacity
In order for a Will to be valid, the person making the Will must have ‘testamentary capacity’. Normally, the person must be an adult, in possession of the necessary mental capacity and must know and approve the contents of the Will. The person making the Will must also possess the necessary testamentary intention.
Succession Act 2006 (NSW)
A person may bring an application to vary or set aside the terms of a Will. The Court may make an order varying the Will if the Court is satisfied that adequate provision has not been made.
Persons who can bring an application to the Court include a person who was the wife or husband of the deceased person at the time of the deceased person’s death, a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death, a child of the deceased person and a former wife or husband of the deceased person. There are other categories of eligible persons who can bring an application.
It is important to immediately seek legal advice regarding your rights. For a free, no-obligation appointment, please ring Steve McAuley of McAuley Hawach Lawyers on either (02) 9633 1826, mobile 0413 853 331 or email firstname.lastname@example.org.
By Steve McAuley, Accredited Specialist – Commercial Litigation
McAuley Hawach Lawyers.
Level 7, 9 George Street, Parramatta NSW 2124
Telephone: (02) 9633 1826
Facsimile: (02) 9687 8114
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