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31 December 2019

A person may question the validity of a will or make an application under the Family Provision chapter of the Succession Act 2006, Chapter 3.  In each case, legal advice will be required.

Is the Will Valid?

It may be claimed that a will presented for probate was not intended to be the person’s final will on the grounds that:

  • It was not the last will made by the person
  • The person lacked the mental capacity to make it
  • It was altered after it was signed
  • The person was unduly influenced or tricked
  • It had been revoked.

Undue Influence

The Supreme Court of NSW will overturn a will on the grounds of undue influence where it is satisfied the will maker’s mind was coerced to such an extent that the resulting will was contrary to the will maker’s real intentions.  Flattery and persuasion by someone who stands to gain from the will is not unlawful as such.  However the courts may be suspicious if there has been obvious persuasion by the person who drew up the will, particularly if that person would benefit from it.

A person claiming undue influence must prove the fact with full details and supporting evidence.

Is the Will clear?

If the will is unclear, the executor or a party interested in the estate, may apply to have the court determine what was meant, for example if there were beneficiaries with the same name and the will does not clearly distinguish who was the beneficiary.

The rectification power under the Succession Act s 27 gives the Court the power to rectify the will if the way it is expressed fails to carry out the will maker’s intentions, or a clerical error mas made in the drafting of the will.  Section 32 allows limited evidence to be admitted (including evidence of the will maker’s intentions) in a court hearing to have the true construction of the will determine if the language of the will makes any part meaningless or ambiguous.

The court will not accept evidence of the direct intention of the deceased, for example, evidence of a statement that the deceased told someone they would receive a certain gift.  Only the fact that the beneficiary had a certain relationship with the deceased would be accepted by the court.

Who is entitled to see the will?

A new provision of the Act lists the categories of people now entitled to look at the will and be provided with a copy (at their cost).  The list includes anyone named in the will, anyone named as a beneficiary in an earlier will, surviving spouse or de facto or issue of the deceased: s 54.  Previously the executor could refuse to provide a copy of the will and it could only be obtained from the registry after probate was granted.

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