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Five Ways to Challenge a Will

There are many ways to challenge the validity of a Will.  If a Will is successfully challenged, a Will can, in effect, be set aside or varied.

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 2006 (NSW).


1              Undue influence

A Will may be set aside due to ‘undue influence’.  In this context, ‘influence’ means a psychological ascendancy by the donee over the donor, and ‘undue influence’ means the donee takes improper advantage of such ascendancy: Union Bank of Australia v Whitelaw [1906] VLR 711 at 720.

It is not necessary that the ascendancy amount to domination: Goldsworthy v Brickell [1987] Ch 378 at 402-6.

In order to prove undue influence, it is generally necessary to prove facts establishing that the gift was made by the donor as a result of undue influence of the donee; or facts that give rise to a presumption that the gift was so made, unless the donee rebuts the presumption in the manner mentioned below: see Quek v Beggs (1950) 5 BPR 11,761 at 11, 764.

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: Allcard v Skinner (1887) 36 Ch D 145, 185.

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: see Lancashire Loans Ltd v Black [1934] 1 KB 380 at 409; West v Public Trustee [1942] SASR 109 at 119.


2              Fraud

If it can be proved that the Will was procured by fraud, it may be set aside or varied. In Re Snowden (dec’d) [1979] Ch 528, Megarry V-C considered the relevance of fraud in some detail.  In that case, his Lordship was referring to deliberate and conscious wrongdoing.  It might be argued that trickery or the making of false statements amounts to fraud.  It is often difficult to prove fraud.


3              Forgery

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 forgery might involve a circumstance where a potential beneficiary creates a document and claims that the document is the last known testament of the deceased person.  Expert evidence may be required to prove a forgery.


4              Lack of testamentary capacity

In order for a Will to be valid, the person making the Will must have ‘testamentary capacity’.  In general terms, the person must be of full age, in possession of the necessary mental capacity and must know and approve the contents of the Will.

In addition, the person making the Will must possess the necessary testamentary intention.

Generally, a person must be 18 years of age to make a Will and must be of sound mind, memory and understanding.  Sanity is presumed unless the contrary is shown.

It is also necessary that the person making the Will know and approve the contents of his or her Will at the time of execution.


5              Succession Act 2006 (NSW)

An eligible person may bring an application to, in effect, vary or set aside the terms of a Will.  In general terms, the Court may make an order varying the Will if the Court is satisfied that at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the Will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

Persons who can bring an application to the Court for a family provision order 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 for a family provision order.



It is important to immediately seek legal advice regarding your rights.  Contact us for a free and no-obligation first consultation today to discuss your matter.


By Steve McAuley, Accredited Specialist – Commercial Litigation

McAuley Hawach Lawyers.


McAuley Hawach Lawyers

Level 7, 9 George Street

Parramatta NSW 2124

Tel: (02) 9633 1826

Fax: (02) 9687 8114



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