Contesting/Challenging A Will

Challenging vs Contesting — They're Not the Same

In NSW, these two terms are often used interchangeably, but legally they're very different:

• Contesting a Will — accepting the Will is valid but asking the Supreme Court for a greater share, typically through a Family Provision Claim.
• Challenging a Will — attacking the validity of the Will itself, asking the Court to set it aside on legal grounds.

This page focuses on challenging the validity of a Will. If your concern is that you've been left out or under-provided for under an otherwise valid Will, the family provision claim page is the right starting point.

Grounds for Challenging a Will's Validity

The Supreme Court of NSW can set a Will aside in whole or in part if one of the recognised legal grounds is established on the evidence:

Lack of testamentary capacity

The deceased did not have the mental capacity to make a valid Will at the time of signing. The leading test was set out in Banks v Goodfellow (1870) — the deceased must have understood the nature of making a Will, the extent of their property, the people who might reasonably expect to benefit, and have been free of any "disorder of the mind" that distorted their decision. Capacity challenges are most common where dementia, severe illness, stroke or strong medication was in play around the time the Will was made.

Undue influence or coercion

Someone exerted pressure or coercion on the deceased to make a Will in their favour or to change an earlier Will. The threshold is high — mere persuasion isn't enough. The Court looks for evidence that the deceased's free will was overborne. Common scenarios: an isolated elderly person who suddenly changes their Will after moving in with a single beneficiary, or a paid carer who comes to control the deceased's affairs.

Fraud or forgery

The Will itself, or a signature on it, isn't genuine — or the document was prepared without the deceased's knowledge or authority. These cases regularly involve forensic handwriting analysis and detailed examination of the surrounding circumstances.

Lack of knowledge and approval

The deceased didn't know or approve of the contents of the Will. Used where there are "suspicious circumstances" — for example, where the principal beneficiary drafted the Will, or where the deceased couldn't read the Will themselves and there's no evidence it was properly read to them.

Improper execution

A Will in NSW must comply with the formal requirements of section 6 of the Succession Act 2006 (NSW): it must be in writing, signed by the deceased (or by someone in their presence at their direction), and witnessed by two people present at the same time. Failures in execution can render the Will invalid, though the Court has a power to admit an informal document under section 8 in some cases.

Revocation

The Will was effectively revoked by a later Will, by destruction with intent to revoke, or by operation of law (such as marriage under s12 of the Succession Act).

Who Can Challenge a Will's Validity?

Unlike a family provision claim — which has a fixed list of "eligible persons" under s57 — a validity challenge can be brought by anyone with a sufficient interest in the outcome. That typically means:

• Beneficiaries under the disputed Will
• Beneficiaries under an earlier Will that would take effect if the disputed Will is set aside
• People who would inherit under the intestacy rules if there were no valid Will at all
• Creditors of the estate in limited circumstances

How a Challenge Actually Works

1. Initial assessment. We review the available evidence — medical records, the solicitor's file from the Will drafting, any previous Wills, witness statements — and give you a candid view of the prospects.
2. Lodge a caveat (if probate hasn't been granted) to preserve the position while evidence is gathered.
3. Subpoena key records — medical files, the drafting solicitor's file note, banking records, aged-care assessments.
4. File proceedings in the Supreme Court of NSW (Equity Division). The proceedings ask the Court either to grant probate of the earlier Will, or to refuse probate of the disputed Will.
5. Mediation. Most matters settle at compulsory mediation, usually within 12–18 months of filing.
6. Hearing if no settlement — typically a 2–5 day hearing in the Equity Division.

Time Limits

Different challenges have different limitation periods, and they can be unforgiving:

• Caveats — should be lodged before a Grant of Probate is issued (you have no fixed deadline but once a Grant issues, your options narrow significantly).
• Setting aside a Grant for fraud — generally up to 12 years from the date of the Grant, but earlier is always better.
• Setting aside a Grant on other grounds — typically much shorter; depends on when you became aware of the issue.
• Family Provision Claims (if pursued alongside or instead) — 12 months from the date of death under s58 Succession Act.

If you think a Will may be invalid, talk to a specialist solicitor early. Delay is one of the most common reasons strong challenges fail.

Common Questions About Challenging a Will

Can I challenge a Will after probate has been granted?

Yes, but it's harder. You'd be applying to "revoke" the Grant rather than simply opposing it. The Court will want to know why you didn't act earlier, and the time limits become more important. If you're worried a Will may be invalid, lodge a caveat before probate is granted — it's far cheaper and easier than reversing a Grant later.

What evidence do I need to prove lack of capacity?

The strongest cases are built on contemporaneous medical records — GP and specialist notes, cognitive assessments, hospital admissions, and aged-care file notes — together with the drafting solicitor's file note from the date the Will was made. Witness evidence from people who saw the deceased around that time is also valuable. The test from Banks v Goodfellow guides what the evidence needs to show.

How do I prove undue influence?

Undue influence is hard to prove directly. The Court looks at the deceased's vulnerability, the relationship with the alleged influencer, the opportunity for influence, and any suspicious changes to the Will or wider arrangements. Evidence often includes the deceased's isolation, sudden changes in lifestyle, and the alleged influencer's involvement in the Will-drafting process.

What is a caveat on probate?

A caveat is a formal notice lodged with the Supreme Court of NSW that stops a Grant of Probate being issued without notice to you. It lasts six months and can be renewed. It's the standard first step where you suspect a Will may be invalid but need time to investigate.

How long does a validity challenge take?

Most matters settle at mediation within 12 to 18 months. Cases that proceed to a full hearing in the Supreme Court Equity Division typically take 18 months to 2 years from filing.

Who pays the costs of a validity challenge?

It depends on the outcome and the conduct of the parties. Where the dispute was caused by suspicious circumstances or by the deceased's own conduct, the Court may order both sides' costs to be paid out of the estate. In other cases costs follow the event (loser pays). We discuss likely cost outcomes at the first consultation.

Can I bring both a validity challenge and a family provision claim?

Yes — they're separate causes of action and can run in parallel. If a validity challenge succeeds, an earlier Will (or the intestacy rules) takes effect. A family provision claim can then be brought against whichever estate distribution applies. We advise on whether to bring one, the other or both at the initial consultation.