If you suspect that a loved one’s will is invalid, it is important to seek legal advice. Wills must comply with strict formal requirements and the person making the will (the testator) must have the mental capacity to understand its effect. If these standards are not met, the Supreme Court may declare the will invalid.
Grounds for challenging a will
Lack of testamentary capacity. The testator must understand the nature of a will, the extent of their assets and the claims they should consider. Dementia, severe illness or cognitive impairment may undermine capacity.
Undue influence or duress. A will may be set aside if someone pressured the testator to include certain gifts or exclude others.
Fraud or forgery. Wills can be challenged if they are forged or if the testator was tricked into signing.
Lack of knowledge and approval. A will may be invalid if the testator did not know and approve its contents.
Failure to comply with formalities. NSW law requires wills to be in writing, signed by the testator and witnessed by two independent witnesses. Informal wills can sometimes be recognised, but only if the court is satisfied that the document states the testator’s intentions.
Act quickly
Unlike family provision claims—which must be filed within 12 months of the date of death—there is no fixed statutory deadline for challenging a will’s validity. However, it is vital to act before the estate is distributed and to file a caveat against the grant of probate as soon as possible. Delay can make it harder to recover assets and obtain evidence. Contact us as soon as you become aware of a potential issue to avoid missing critical deadlines.
How we can help
Our wills and estates team will:
- Examine the circumstances in which the will was prepared and signed.
- Obtain medical records and expert opinions about the testator’s capacity.
- Engage handwriting experts to assess whether a signature is genuine.
- Negotiate with executors and beneficiaries to resolve disputes without court proceedings whenever possible.
Free consultation and honest advice
We understand that contesting the validity of a will can be stressful. We offer a free initial consultation to discuss your concerns and advise whether you have grounds to challenge the will. If we believe you do not have a viable claim, there is no cost to you. Contact us today to protect your rightful inheritance.