Can you Challenge a Will?

Dec 6, 2022 | Publication | 0 comments

A Will can be challenged for all sorts of reasons.  For instance, a Will may be a fraud.  The person making the Will may have been the subject of undue influence.  Or perhaps the person making the Will did not have the mental capacity to make a Will.

Even if a Will has been properly made and executed, the Court has power to, in effect, set aside the terms of the Will by making provision for a person who has received no or inadequate provision.

In order for a person to obtain an order from the Court for provision or additional provision, there are a number of legal hurdles which the person needs to overcome.

The first hurdle is ‘eligibility’.

The Succession Act 2006 (NSW) governs this area of the law as well as case law.

In order for a person to be an eligible person for provision or extra provision under the Succession Act 2006 (NSW), the person needs to be:

  • A person who was the spouse of the deceased person at the time of the deceased’s death
  • A person with whom the deceased was living in a de facto relationship at the time of the deceased’s death
  • A child of the deceased person
  • A former spouse of the deceased person
  • A person:
  1. Who was, at any particular time, wholly or partily dependent on the deceased; and
  2. Who is a grandchild of the deceased or was, at that particular 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 the deceased’s death.

Time limits apply to bringing an application for provision pursuant to the Succession Act 2006 (NSW).

 The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.

Latest Insights

New Coercive Control Laws in NSW as of 1 July 2024

From 1 July 2024, coercive control will be a crime in NSW when a person uses abusive behaviours towards a current or former intimate partner with the intention to coerce or control them. The Crimes Legislation Amendment (Coercive Control) Act 2022makes it an...

Key Rules on Discovery Procedures for Prospective Defendants

Rules 5.2 and 5.3 of the Uniform Civil Procedure Rules 2005 (UCPR) provide essential guidelines on discovery aimed at identifying or locating prospective defendants. These rules are instrumental in the pre-litigation process, ensuring that applicants can gather...

5 Ways A Director Can Be Sued

Directors can be sued for all sorts of reasons.  Here are 5 of them. Reason #1: Insolvent Trading A director can be sued if the company he or she is a director of trades whilst insolvent.  A director has a duty to prevent the company trading and incurring...

7 Ways to Enforce a Judgment

After a judgment is obtained for an amount of money, there are numerous options open to a judgment creditor in relation to how to enforce the judgment (i.e. how to obtain the money which is owed pursuant to the judgment). Option #1: Issue a Bankruptcy Notice If the...

Who Can Bring a Compensation to Relatives Claim?

In the unfortunate event of a loved one's passing due to negligence or wrongful act, the Compensation to Relatives Act 1897 in New South Wales outlines the parameters for pursuing compensation on behalf of the deceased. Understanding who has the legal standing to...

10 Myths of Being Sued

If you or your business are sued, there are many myths about how the legal process will pan out.  Here are 10 myths about the legal process – all are incorrect. Myth #1: The matter will definitely go to a hearing Most matters settle before a Judge decides...