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Challenging a Will

Challenging a will often arises from concerns about undue influence, lack of capacity, or inadequate provision for family members. If you believe a will does not reflect the true intentions of the deceased or fails to provide for eligible persons, it is essential to understand the grounds for challenging a will and the steps involved in the legal process. Responding appropriately can help resolve disputes and protect your interests.

Grounds for Challenging a Will

Undue Influence
If someone exerts coercion or pressure on the testator to sign the will, challenging the will becomes necessary. For example, if a caregiver influenced the testator to leave a significant portion of the estate to them, the court might invalidate the will.

Lack of Capacity
Challenging a will is also possible if the testator did not have the capacity to understand its implications. This is common in cases where the testator suffered from dementia or other conditions affecting their judgment. Demonstrating that the testator lacked capacity can lead to the will being set aside.

Inadequate Provision
Even if a will appears valid, challenging a will may still be necessary if it fails to make proper provision for eligible persons. The Supreme Court of NSW can adjust the will to ensure adequate support for individuals who were inadequately provided for.

Who Can Challenge a Will?

Various individuals have the legal right to challenge a will, including:

  • Spouse or Partner: This includes both married and de facto partners.
  • Children: Biological and adopted children of the deceased.
  • Former Spouse or Partner: Those previously in a marital or de facto relationship with the deceased.
  • Dependants: People who relied on the deceased for support, such as grandchildren or household members.
  • Close Personal Relationships: Individuals who lived with the deceased in a close personal relationship at the time of death.

Time Limits and Legal Process for Challenging a Will

To challenge a will through a family provision claim, an eligible person must act within twelve months of the deceased’s death. The court considers several factors, including:

  • Relationship to the Deceased: The nature of the relationship between the claimant and the deceased.
  • Financial Needs: The claimant’s current and future financial needs and resources, including earning capacity. Hence, the court evaluates both immediate and long-term needs.
  • Estate Value: The overall value of the deceased’s estate is assessed to determine the potential provision.
  • Contributions to the Estate: Any financial or non-financial contributions by the claimant to the estate or to the welfare of the deceased are considered.
  • Testamentary Intentions: Evidence of the deceased’s intentions for the distribution of their estate can impact the decision.

Example Scenario: Challenging a Will for Preferential Treatment

Imagine an elderly parent, influenced by one child, leaves the majority of their estate to that child while excluding other children. Consequently, if an excluded child believes undue influence played a role, they can challenge the will. The court would then investigate the circumstances surrounding the will’s creation. If undue influence is proven, the court may alter the estate distribution to ensure fairness.

Potential Outcomes of Successfully Challenging a Will

When a challenge to a will succeeds, the court can order a redistribution of the estate. Generally, funds for family provision orders come from the estate’s assets. However, if the estate does not have sufficient funds, the court may issue a notional estate order. This includes assets transferred out of the estate, such as those placed into a superannuation fund shortly before death, to satisfy the claimant’s entitlement.

Importance of Responding to Will Challenges

As a beneficiary or executor, responding to challenges to a will promptly is crucial. Ignoring the challenge can lead to prolonged legal disputes, increased costs, and potential asset loss. Therefore, seeking legal advice early helps you address the challenge effectively, potentially leading to an amicable resolution or a more favorable negotiation.


Challenging a will involves complex legal considerations that require careful and timely action. Whether claiming undue influence, lack of capacity, or inadequate provision, understanding the grounds and processes for challenging a will is crucial. Consulting with an experienced estate lawyer ensures your case is presented effectively and your interests are protected.

This article provides general information on challenging a will and does not constitute legal advice. For specific guidance, consult a qualified lawyer. The examples are for illustrative purposes and may not apply to every situation.

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