A Will can be invalid for a variety of reasons, including:

• Incapacity - such as where the person who made the will suffered from some mentally incapacity at the time, such as having dementia, and accordingly, they could not validly sign such an important document as they lacked the requisite testamentary capacity.
• Undue influence or coercion – such as where the person making the will was placed under pressure from others to make a Will in certain terms, so it is not in reality their last wishes.
• Incorrect execution –where the Will was not signed as is required by the Probate and Administration Act 1898 (NSW) such as if there are not 2 adult witnesses or the witnesses are also beneficiaries and not independent.
• Fraud/forgery – where a will has been created by another person pretending to be the testator or where a will has been altered, destroyed, concealed or otherwise interfered with. It is an offence under the Crimes Act 1900 (NSW) punishable by imprisonment to steal or for any fraudulent purpose destroy, cancel, obliterates or conceals any testamentary instrument.

We have experience in opposing the granting of probate to wills on the basis of invalidity and in applying to have a caveat on probate issued by the Supreme Court. We have also represented may executors in having otherwise informal wills (such as wills where they have not been witnessed strictly as required by the relevant legislation) proven in court and being the subject of a Grant of Probate or Letters of Administration with the will annexed.

Regularly, applications contesting the validity of will are in addition to a claim for a provision or a better provision form a deceased estate under the Succession Act 2006 (NSW) but they are not necessarily linked.

Where there is uncertainty about the terms or effect of a Will, the Court can be asked work ascertain what the deceased really meant to do with their estate. Executors and trustees can also apply to the Court for what is known as “judicial advice” so that they can rely on the Court’s advice in taking steps where there would otherwise be potential for dispute as to the deceased’s intentions or the effect of various provisions.

Most claims are settled by written agreement between the parties following a mediation without the need for the parties to attend a hearing.

Contact us

For free initial telephone advice in relation to making or responding to a claim or threatened claim in relation to the validity of a will, the inadequacy of a provision made for you in a will or the administration of a deceased person’s estate, please call one of our Estate and Estate Litigation Lawyers on (02) 9525 8688.