Common reasons to contest a Will in New South Wales

In New South Wales, a Will can be contested for two main reasons:

1. The Will is not valid

For a testator (the person making the Will) to have a valid Will they must have the capacity, knowledge and intention to provide instructions on how their assets are to be disposed of upon their death.

The following are common reasons a Will may be found to be invalid:

Lack of mental capacity: the testator did not understand the nature of what they were doing and the impact on their assets (most commonly due to ailing cognitive health such as dementia and Alzheimer’s disease).

Undue influence: someone with a close personal relationship to the testator pressured (coerced) or manipulated them into changing their Will.

Fraud or forgery: either through deceit or misrepresentation a person was tricked into signing a Will or the Will was forged.

Not signed properly: the Will was not signed by the testator or the Will was not witnessed correctly (not signed in the presence of two (2) or more witnesses).

2. You Have Not Been Adequately provided for or You Were Left Out of The Will

You could be entitled to make a ‘Family Provision Claim’ if the Will did not make an adequate provision for you.

To be considered an eligible person, you must fall into one of the following categories to apply for family provision:

• A spouse of the deceased
• A de facto partner
• A child (including adult or legally adopted children)
• A former spouse
• A person who was at any time wholly or partly dependent on the deceased, and
• A person with whom the deceased was living in a “close personal relationship”.

You must show the Will did not adequately provide for your proper maintenance, education or advancement in life.

Time Limit

While you have 12 months to file a claim, it's best to notify the Executor or Administrator of the Estate within 6 months of the date of death. If you don't, they may distribute the estate after 6 months, which could harm your claim. By giving notice, the Executor or Administrator becomes personally responsible for any losses incurred after distribution to the beneficiaries.

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