Contesting a Will in NSW

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If you believe you have been unfairly provided for in a loved one’s will, you may be considering contesting a will in NSW.

A will is usually contested or challenged in NSW on two primary grounds.

The first is that the will of the deceased is not legally valid and therefore should not stand.

The second is when someone feels they have been unfairly omitted from a loved one’s will. In these cases, a family provision claim will apply.

 

Is the Will Legally Valid?

 

When contesting a will, you will want to know whether a will was legally valid.

In determining whether a will is legally valid, the court will answer the following questions:

  • Is it the last will made by the will-maker?
  • Was it made in following all legal requirements? For example, was it written down, signed by the deceased and witnessed by two people who are not named as beneficiaries?
  • Did the deceased have testamentary capacity? I.e. Were they of sound mind to understand the implications of their will at the time of signing?
  • Has the will been altered in any way since the signing of the document?
  • Was there any undue influence involved when the will was drawn up?

Undue Influence

 

Undue influence refers to situations where the will-maker is put under pressure by a third party to write the will in such a way that goes against their true intentions and wishes.

Contesting a will due to undue influence is often hard to prove.

This most commonly occurs when the third party is attempting to coerce the will-maker to name them as a beneficiary.

Many methods may all be employed to unduly influence a will-maker, including intimidation, trickery, deception, blackmail and flattery.

Undue influence is a considerable claim to make against somebody and the burden is on the accuser to prove undue influence has occurred.

Evidence may include any witnesses to coercion at the signing of the will, the entire estate being left to one person, particularly someone unknown to the will-maker’s family and friends, or the fact that the will is markedly different to any previous wills drafted by the deceased.

In the eyes of the Australian courts, Wingrove v Wingrove still sets the standard for undue influence in such cases. Sir James Hannen P spoke to the jury about coercion in such matters, particularly as related to older people.

‘The coercion may, of course, be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may become so weak and feeble that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage or illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything. This would equally be coercion though not actual violence.’

 

Testamentary Capacity

 

Whether the will-maker had testamentary capacity at the time of making their will has long been a determining factor as to if a will is considered legal and valid in NSW.

Many people presume that if someone has been diagnosed with Alzheimer’s or dementia, any will they make will not be deemed valid.

This is not the case, however, as there are 4 recognised areas that the court will look at when determining whether someone had the necessary testamentary capacity to make a will.

  • Firstly, the court will look at whether the will-maker was aware and appreciated the significance of making the will.
  • Secondly, if the testator was aware of the nature and value of the estate their estate.
  • Thirdly, if the will-maker had an idea of who would reasonably be thought to have a claim to their estate.
  • Lastly, the court will evaluate whether the testator had the capacity to discriminate between the strength of the above claims.

Suspicious Circumstances

 

Even if the will-maker had testamentary capacity at the time they made their will, the court would also look at the circumstances surrounding the making of the will to ensure the deceased knew and approved of its contents.

This may be grounds for contesting a will in NSW.

If the will was prepared by a solicitor, in most cases it will be assumed that the testator knew and approved of the will’s contents.

In cases where there are seen to be suspicious circumstances, the onus of proving the will-maker knew what they were signing falls on the person/people trying to uphold the will.

Some examples of suspicious circumstances that have been appeared in court cases are:

  • A dramatic and unexplained change in the division of the estate
  • When a child is disinherited, but there has been no estrangement or change in the relationship
  • The will has been prepared by someone other than the deceased
  • Suspicious conduct from beneficiaries in the will towards people who were named in a previous will but were disinherited in subsequent wills

Justice Hallen has stated that where knowledge and approval of a will is challenged, there is generally a two-stage process:

‘The first stage is to ask whether the circumstances are such as to ‘excite suspicion’ on the part of the court.

If so, the burden is on the propounder of the will to establish that the deceased knew and approved the contents of that will. If the circumstances do not ‘excite suspicion’, then the court presumes knowledge and approval in the case of a will that has been duly executed by the deceased who had testamentary capacity

contesting a will

Family Provision Claims

 

If a will in NSW is deemed to be valid and legal, but a loved one still feels they have been unfairly provided for they can start the process of contesting a will by making a family provision claim.

To make a family provision claim in NSW, a person must be listed as eligible under Section 57 of the Succession Act 2006 (NSW).

Eligible people include:

  • The will-maker’s spouse at the time of their death
  • The will-maker’s de facto partner at the time of death
  • The will-maker’s children
  • Any of the will-maker’s ex-spouses
  • Any person who was dependant on the will-maker at the time of their death
  • Any person who was living in a close personal relationship with the person when they died

While parents, siblings, stepchildren, and ex de factos are not expressly listed, they may be considered eligible if they were cohabitating with the deceased or were financially dependent upon them at the time of their death.

Eligible parties have twelve months to contest a will in NSW, and the court will take into account a variety of factors when determining whether to make a family provision order.

The court’s primary concern is ensuring that the eligible person’s maintenance, education and advancement in life is adequately provided for.

According to section 60(2) of the Succession Act 2006, the evidence the court can look at in making its decision include:

  • The relationship between the deceased and the applicant
  • What, if any, obligations the deceased had to the applicant and other beneficiaries of the estate
  • The nature and extent of the estate including any liabilities
  • The mental and physical health of the applicant including any existing disabilities
  • The current financial position and present and future financial requirements of the applicant and other beneficiaries
  • The applicant’s age
  • If the applicant contributed to the deceased’s welfare or to the improvement of the deceased estate before death,
  • Any evidence of the deceased’s intention to provide for the applicant, including any statements made by the deceased
  • The applicant’s character and conduct before the will-maker’s death
  • Any applicable Aboriginal or Torres Strait Islander customary law

Costs of Contesting a Will

 

The costs involved with disputing a will in NSW will vary depending on factors such as:

  • Whether you are contesting the validity of the will or are applying for a family claim provision
  • How complicated your case is/becomes
  • Whether you can settle your claim before it reaches court

While most lawyers will make every attempt to postpone any court fees associated with your case until settlement, it is likely there will be some, small, unavoidable costs along the way.

If your claim is successful, the costs of your case will generally be covered by the estate.

If a will is unsuccessfully challenged based on fraud or undue influence, and it is shown that there were no reasonable grounds for a challenge, the court will rarely order that the estate must pay the unsuccessful party’s legal costs.

When contesting a will in NSW ends up in court, the legal costs can be run into the tens of thousands, so it important to make sure you have a strong legal case before making a claim.

Example of contesting a will – the case of Colleen McCullough

 

Colleen McCullough was a famous Australian author, known for her best-selling novel The Thorn Birds, which sold over 33 million copies worldwide.

At the time of her death in 2015, McCullough’s estate was estimated to be worth several million dollars.

The distribution of McCullough’s estate became a bitter legal dispute that was played out in the Supreme Court of NSW, garnering much attention from the Australian media.

Contesting a will was costly, and resulted in a bitter dispute between McCullough’s husband of thirty years, Ric Robinson and her executor, Selwa Anthony.

The case was made quite complicated since McCullough made several wills throughout her lifetime.

Two wills, made within 6 short months of each other, were at the centre of the dispute.

The first will, dubbed the ‘Oklahoma’ will, was made in July 2014 and named the University of Oklahoma Foundation as the sole beneficiary to McCullough’s multi-million dollar estate.

The second will, signed only a few short months later in October 2014, named her partner, Mr Robinson, as the sole beneficiary.

McCullough’s friend and executor, Ms Anthony, told the court that McCullough deliberately cut Robinson out of her will in 2014 after finding out Robinson had ‘taken a mistress’ and ‘spent all the money’.

The plaintiff’s lawyer, Kim Morrissey, also gave evidence to the court, recounting an episode on June 24, 2014, where the author called the police to her home and told officers that Mr Robinson and his mistress entered her bedroom and were aggressive towards her.

Ms Anthony accused Mr Robinson of taking advantage of McCullough’s ill health to make her re-write her will, with the case resting on whether Robinson used undue influence to coerce McCullough to change her will and name him as the sole beneficiary.

McCullough’s solicitor, Piria Coleman agreed with Ms Anthony that the ‘Oklahoma’ will was the genuine one.

In McCullough’s last few weeks of life, she was visited several times by a GP, Dr Robert Challender, who prepared a letter for Robinson, stating that while McCullough was in bad shape physically, her mental state was good and she was ‘completely able to make well-considered decisions’.

Robinson provided a copy of this letter to Coleman only two short weeks before McCullough’s death. Coleman stated that the document was prepared in a calculated attempt by Robinson to prove McCullough’s testamentary capacity, should anyone come to question the second will.

Despite finding that Robinson was not a ‘wholly reliable witness’, New South Wales Supreme Court Justice Neil Rein found that Ms Anthony had not sufficiently established that Mr Robinson coerced his wife into signing the documents.

Justice Rein’s judgement ultimately found that ‘Colleen McCullough intended to bequeath her entire estate to her husband,’ with the second will being found to be valid.

Each party was ordered to bear their own costs.

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