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Winter Newsletter - Challenging a Will


“What do you mean by challenging a Will?”


When we talk about challenging a Will, in technical terms it can mean one - or both- of 2 things.


The first case is a challenge to the validity of the Will, where perhaps it is claimed that the testator (the will-maker ) did not have the  mental capacity to make a Wll, or that he or she was so much under someone’s thumb that the Will was not really their own Will.


Another area of challenge to the validity of a Will is that there were shortcomings in the way it was signed and witnessed. The court does now have power to overlook such deficiencies, which can cure- at a cost- the type of problems more usually encountered with homemade or kit Wlls.


The other situation of a challenge, is what are known as Family Provision claims. These are claims by -normally - a relative who believes that they have been hard done by in the Will, that they deserved better treatment.


"What do you mean by mental capacity?"


To make a Will, the Will-maker has to know and understand what they are doing. In our aging society we are seeing more suffering from dementia, and this is where the problems often arise. Alzheimers is a degenerative illness, and when the symptoms first arise, a sufferer will typically have good and bad days. On a good day, they will know what they want in their Will, and will understand its effect, but how do we know when they die whether the Will was made with understanding or not?


To avoid problems, a health professional should certify as to mental capacity on the day the Will is signed - lawyers are not mental health experts, and if a lawyer is preparing and witnessing a Will, do not expect that they will be prepared to make a decision as to capacity.


“Who can make a Family Provision claim?”


The Act of Parliament that governs these matters, the “Succession Act”, lists those categories who are eligible to make a claim. Of course, being an “eligible person” does not mean any claim will succeed. The classes of eligible persons are:-

• Husband or wife,

• A de facto partner, including a same sex partner,

• Former spouse or partner,

• Children and grandchildren,

• Someone who has ever been dependant on the deceased, and

• In some circumstances only, someone who has lived in the same home as the deceased.


"What happens with a Family Provision claim?"


If someone  (the claimant) , being an eligible person, believes that they deserved better than the provision made for them, which includes no provision at all, a claim can be made through the Supreme Court Generally the Court works on the premise that the testator has the right to dispose of their estate as they wish, but if a claimant has a good moral claim, the Court can in effect vary the will.


A typical situation arises where the testator has several adult children, and provides for them differently.

Often in that situation the possibility of a challenge is known, so is there anything that can be done to reduce a claimant's chances?

There is. mention that can be made in the Will of reasons, or those reasons can be set out in another document kept with the Will. Often a Will may contain a "due consideration" clause, a clause which says that the testator has given due consideration to the position of child X, and has then made the terms of the will appropriately. 

Those precautions will greatly increase the chances of the terms of the will being upheld by the Court.


"Do you have to go to Court about a Family Provision claim?"


As with many court cases, a settlement between the parties is often reached, sometimes even before any actual proceedings are commenced. If they are to be settled, the consent of all beneficiaries would be required, and in a formal document. If any of the beneficiaries who may lose a part of their inheritance are under 18 - infants, as the law calls them - then the approval of the court would be required.


Frank Boitano is an Estate Litigation Expert who can help with any disputes or challenges that may arise from a Contested Will. To make an appointment for a free case appraisal call him today on 02 9630 0444 or email



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Barwick Boitano Lawyers

29 Fennell Street,  North Parramatta NSW 2151

(02) 9630-0444

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