Challenging / Contesting a Will as invalid

The grant of probate is based on the understanding that the Will is valid and represents the last testamentary intentions of the deceased. There are a number of ways to proceed if it is believed that the will is not valid or that the application should not continue for some other reason. It is preferable that any application to challenge a Will, is made before probate is granted and before the executor has dealt with the assets of the estate.

Some circumstances where interested persons may seek to challenge a will:

• The Will is not the last Will of the deceased.
• The testator lacked testamentary capacity at the time the Will was made.
• The testator lacked knowledge and approval of the Will.
• The Will is a forgery, was made under undue influence or pressure, or is fraudulent.
• The Will is not executed in accordance with Part 2.1 of the Succession Act 2006.
• The testator revoked the will in his or her lifetime.

Filing a caveat

A person who is concerned about a pending or current application in a particular estate may, if they have a legitimate interest, for example, they are an executor or beneficiary under a different Will which they claim is the last valid Will of the deceased, file a caveat which prevents a grant being made until the caveat lapses or is withdrawn. A caveat remains in force for 6 months from the date on which it is filed. The caveat must be served on any known applicants or potential applicants for a grant of probate or administration of the estate. See Part 78 Division 10 of the Supreme Court Rules 1970 for the rules on caveats.

The applicant for probate may file a notice of motion for the caveat to cease to be in force if they believe that the caveator does not have a legitimate interest in the proceedings.

Creditors, persons with a legitimate family provision claim and persons with a court order touching on the deceased, for example a Family Court order, are not interested persons for the purpose of the probate proceedings as their claims are not affected by which Will is admitted to probate or whether the deceased is intestate. Their interest is limited to ensuring that the estate is properly administered and any claim they have would be in a different jurisdiction of the Court.

Commencing Contested Proceedings

If a dispute cannot be resolved amicably between interested persons, a person who has been served with notice of the application may file an appearance. This results in them being joined as a defendant and the matter is listed in Court. The registrar will usually direct that the matter is to proceed by way of pleadings (statement of claim).

Alternatively, the applicant or any other person claiming an interest in the estate, may commence contentious proceedings by filing a statement of claim. The statement of claim must be served on the named defendants. A notice of proceedings which annexes the statement of claim and any Will propounded must also be served personally on all persons who would be adversely affected by a grant of the Will or application sought: see Part 78 rules 57 and 64 of the Supreme Court Rules 1970.

If you intend to contest a Will or if you are an executor or administrator who is being challenged you are strongly advised to seek independent legal advice as these proceedings may be legally complex and attract daily court hearing fees. Furthermore, unsuccessful applicants may be required to pay the costs of the successful party.

Contesting a Will because it fails to make adequate provision

You can only challenge a Will for the reasons set out above. The Will will not be set aside because a person claims that a testator has not made adequate provision for them. If you believe that you are an "eligible person", that you have not received adequate provision under the Will and that you will suffer hardship as a result, you may file a summons in the Family Provision list. The application must be made within 12 months of the date of death otherwise an extension of time must be sought. See also Chapter 3 of the Succession Act 2006 and the Family Provision Practice Note, SC EQ 7.

Eligible persons under s 57 of the Succession Act 2006 are:

• a wife or husband of the deceased.
• a de facto spouse of the deceased.
• a child of the deceased person, including an adopted child.
• a former wife or husband of the deceased person.
• a person who was dependent on the deceased person.
• a grandchild who was a member of the deceased's household.
• a person who was living in a close personal relationship with the deceased.

The size of the estate, the age, health, financial position and closeness of the relationship between the applicant and the deceased is taken into account when determining these applications. The applicant must also be able to prove to the court that she or he is in financial need, or that there is some other special reason why provision should be made for them.

Family provision matters are determined in the Succession & Probate List. The principles applied by the Court when determining whether to make a family provision order are set out in the judgment in Hulme v Graham [2010] NSWSC 1281. Section 60 of the Succession Act 2006 also lists the matters that may be considered by the Court..

If you intend to lodge a Family Provision claim you are strongly encouraged to seek independent legal advice, as this is a very complex area of law. You are also encouraged to read the above judgment (found on Caselaw) and the Practice Note before lodging an application. Daily hearing fees may apply in these types of legal proceedings and unsuccessful applicants may be required to pay the costs of the successful party.

Case management in the Succession and Probate List

All contested proceedings are managed in the Succession and Probate List. Directions before the List Judge will take place on a Friday unless otherwise advised by the Court.

All matters filed on or after 1 July 2023 must adhere to the requirements in Practice Note SC EQ 07. The Court will generally require the parties to prepare a Disclosure Statement (see paragraph [19] of the Practice Note SC EQ 07). Both legal practitioners and self-represented litigants must be cognisant of and will need to comply with the Practice Note.