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.

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