How to Contest a Will in Sydney
How to Contest a Will in Sydney
January 26, 2024
How to Contest a Will in Sydney

Wills are powerful legal instruments that dictate the distribution of a person’s assets after their passing. However, they are not immune to disputes. In some cases, the contents of a will can be contested, leading to legal proceedings.

This article explores the process of contesting a will in Sydney, shedding light on the grounds for contestation, the step-by-step process, family provision claims, case examples, tips for a smooth contestation process, and the importance of legal representation.

Grounds for Contesting a Will

A. Lack of Testamentary Capacity

One of the primary grounds for contesting a will is the assertion that the testator (the person making the will) lacked testamentary capacity at the time of creating the will. This means they did not have the mental capacity to understand the nature and effect of their will.

B. Undue Influence

Undue influence occurs when someone exerts pressure or coercion on the testator to create a will that does not reflect their true intentions. Contestants must prove that the testator’s free will was compromised.

C. Fraud

If the will was created through fraudulent means, such as through the use of false information or deceit, it can be contested in court.

D. Forgery

If there is reason to believe that the testator’s signature or the contents of the will were forged, it can be contested.

E. Not Properly Executed

Wills must adhere to specific execution requirements under the law. If these requirements are not met, the will can be contested.

F. Family Provision Claims

In cases where a person believes they have not been adequately provided for in a will, they can make a family provision claim. This claim asserts that the deceased had a moral duty to provide for them, and the will did not fulfil that duty.

Step-by-Step Guide to Contesting a Will

A. Determine Your Standing

The first step is to determine if you have legal standing to contest the will. Generally, this includes beneficiaries, family members, or dependents who believe they have a valid claim.

B. Seek Legal Advice

Consulting with a solicitor experienced in will contestation is crucial. They can assess the strength of your case and guide you through the process.

C. File a Summons

To initiate the legal process, you will need to file a summons with the court outlining your reasons for contesting the will.

D. Gathering Evidence

Building a strong case requires gathering evidence that supports your claims. This can include medical records, financial documents, and witness testimonies.

E. Negotiation or Mediation

In some cases, negotiation or mediation can lead to a resolution without the need for court proceedings.

F. Court Proceedings

If a resolution is not reached through negotiation, the matter may proceed to court. Here, both sides will present their cases, and a judge will make a decision.

G. Resolution

Once the court makes a decision, the will may be altered, or the matter may be resolved in other ways, depending on the judgement.

Family Provision Claims in Detail

A. Eligibility to Make a Claim

To make a family provision claim, you must be an eligible person, typically a spouse, child, or dependent of the deceased.

B. Factors Considered by the Court

The court considers various factors when evaluating family provision claims, including your financial situation, the deceased’s moral duty, and your relationship with the deceased.

C. Adequate Provision

The court assesses whether the deceased adequately provided for your proper maintenance, education, or advancement in life.

Tips for a Smooth Contestation Process

A. Maintain Open Communication

Clear and respectful communication among family members can help resolve issues without the need for litigation.

B. Be Prepared for Mediation

Mediation can be a quicker and less adversarial way to resolve disputes. Be open to this process.

C. Understand Costs and Timeframes

Contesting a will can be a lengthy and costly process. Understanding the potential costs and timeframes involved is crucial.

D. Consider Alternative Dispute Resolution

In some cases, alternative dispute resolution methods, like arbitration or negotiation, may be a more efficient way to settle the matter.

The Importance of Legal Representation

Having a solicitor who specialises in will contestation is invaluable. They understand the intricacies of the law and can guide you through the process, increasing your chances of success.

Final Thoughts

Contesting a will in Sydney is a complex legal process with various grounds and steps. Whether you’re concerned about the validity of a will, believe you’ve been unfairly left out, or have other legitimate concerns, seeking legal advice is essential.

With the right guidance, you can navigate the process effectively and work toward a resolution that aligns with your interests and the deceased’s intentions.

At Ignify Legal, our experienced lawyers specialise in wills and are ready to guide you through the estate planning process. Your family and loved ones deserve the best expertise and support that Ignify Legal provides.

Please call us today at (02) 8319 1032 or submit an online enquiry.

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