Expert Advice on Challenging a Will in Sydney

Let’s face it, inheritance can be a tricky subject. While most families navigate the process smoothly, sometimes disagreements arise, leading you to question the validity of a will. If you believe a will in Sydney is unfair or downright wrong, you might be considering challenging it. But before diving headfirst into legal battles, here’s some expert advice to guide you through the complexities of will disputes in Sydney.

Is Challenging a Will Right for Me?

This is a crucial first step. Not everyone has the grounds to contest a will. In New South Wales, you generally have two options:

Family Provision Claim: This applies if you’re an “eligible person” (spouse, child, de facto partner, or someone who was financially dependent on the deceased) and feel you haven’t been adequately provided for in the will, considering your moral and financial needs.

Will Challenge: This is for situations where you believe the will itself is invalid. Reasons could include undue influence, lack of testamentary capacity (the deceased wasn’t mentally sound when making the will), or a forged document.

What are the Grounds for Challenging a Will?

Here are some common reasons to challenge a will in Sydney:

Legal Framework

The legal framework for challenging a will in New South Wales hinges on two main pillars: testamentary capacity and formal requirements.

Testamentary Capacity: This refers to the mental competence of the deceased at the time of making the will. They must have understood the nature and consequences of their actions, including the assets they owned and who they were leaving them to.

• Mental Competence: Factors like dementia, Alzheimer’s disease, or other mental illnesses can call into question the deceased’s testamentary capacity.
• Undue Influence: This occurs when someone pressures or manipulates the deceased into changing their will to benefit themselves.

Formal Requirements: For a will to be valid, it must adhere to specific legal formalities.

• Proper Execution: The will must be signed by the deceased in the presence of two witnesses who also sign the document.
• Witnessing: The witnesses must be competent individuals who understand the significance of their role and are not beneficiaries named in the will.

Grounds for Challenge

Beyond the core legal framework, specific grounds can justify challenging a will:

• Lack of Testamentary Capacity: As mentioned earlier, evidence of the deceased’s mental state at the time of writing the will can be crucial. Medical records, witness testimonies regarding the deceased’s behavior, or even inconsistencies within the will itself might support this claim.
• Undue Influence: Proof of coercion, manipulation, or exploitation that led the deceased to change their will in favor of a particular beneficiary can be grounds for a challenge.
• Improper Execution: If the will is unsigned, not witnessed properly, or contains suspicious alterations, its validity can be contested. Forgery or fraud involving the will itself also falls under this category.

Court Processes

Will disputes often involve navigating the court system. Here’s a simplified breakdown:

Probate Applications: The process typically starts with applications for probate, which grants legal authority to administer the deceased’s estate.

• Initial Filing: The executor named in the will files an application with the Supreme Court of New South Wales.
• Caveat Lodgement: If you intend to challenge the will, you can lodge a caveat, essentially putting the probate process on hold.

Contested Probate: Once a caveat is lodged, the process transitions to contested probate.

• Directions Hearings: The court will schedule directions hearings to determine the scope of the dispute and establish timelines for evidence exchange.
• Mediation: The court might encourage mediation to reach an out-of-court settlement, saving time and money.
• Hearing: If mediation fails, the case goes before a judge who will decide on the validity of the will based on the evidence presented.

Legal Representation

Having skilled legal representation is paramount when navigating will disputes. Here’s a breakdown of the legal professionals involved:

Solicitors: These are lawyers who specialize in wills and estates. They can guide you through the legal process, gather evidence, and represent you in court.  Our firm, for instance, has a team of experienced Sydney wills and estates specialists.

Litigation Experts: Solicitors might collaborate with barristers, who are specialized advocates who appear in court to present legal arguments.

• Barristers: They can be Senior Counsel, highly experienced barristers, or Junior Counsel, barristers who are still developing their practice.

Evidentiary Considerations

Building a strong case hinges on presenting compelling evidence. Here are some key considerations:

Medical Records: Medical records documenting the deceased’s mental state around the time the will was written can be powerful evidence, especially in cases where testamentary capacity is in question.

Witness Testimony: Witness statements from individuals who knew the deceased well and can speak to their mental capacity or potential undue influence can be crucial.

Documentary Evidence: Financial records, emails, or even recordings (if admissible in court) that shed light on the circumstances surrounding the will’s creation can be valuable.

Outcomes

The outcome of a will dispute can vary depending on the specific circumstances of the case. Here are some possible results:

Revocation of Will: If the court finds the will entirely invalid due to lack of testamentary capacity, improper execution, or undue influence, it might be revoked entirely. In such cases, the estate would be distributed according to the NSW intestacy laws.

Partial Invalidation: The court might invalidate specific parts of the will if they’re deemed unfair or influenced by undue pressure. The remaining provisions of the will would then be upheld.

Probate Grant: If the court upholds the will’s validity, a probate grant will be issued, authorizing the executor to proceed with distributing the estate according to the will’s terms.

Beyond Will Dispute

Motor Vehicle Accident Claims: If you’ve been injured in a car accident, our Sydney motor vehicle accident lawyers can help you navigate the compensation process.

Family Law: Our Sydney family lawyers can assist with divorce, property settlements, and other family law matters.

Property Settlement Lawyers: We have a team of experienced property settlement lawyers in Sydney who can guide you through the division of assets during separation.

We understand that legal issues can be overwhelming. If you have any questions or require legal representation in Sydney, don’t hesitate to contact our firm. We’re here to help.

Conclusion

You can deal with disputes in Sydney from a clearer perspective and make informed decisions on your future by understanding your options and seeking professional legal advice.