Other types of claims upon Estates

There are two ways to bring a claim against an estate.

The first is to make a claim currently under the Succession Act or the Family Provision Act – depending on the date of the death of the deceased. This is where the Will is valid but its provisions are unfair.

The second way is to challenge the validity of a Will. This type of action may occur in the following circumstances:

1. Where it is alleged that the Will is a forgery.

2. Where fraud is alleged.

3. Where undue influence is alleged.

4. Where it is alleged that the Will-maker lacked the mental capacity to make a Will.

Numbers 1 and 2 are self-explanatory.

Number 3 is where the Will-maker is forced to change their Will because someone is pressuring or threatening to do something harmful to the Will-maker if they do not change their Will.

Number 4 is where the Will-maker lacks capacity. To contest a Will on this ground requires strong medical evidence, as well as other evidence to prove that the Will-maker lacked capacity.

The Court will normally assume that the Will is valid no matter how unreasonable or impulsive that Will may appear to be. Generally, extreme age or illness of the Will-maker are not in themselves conclusive evidence of incapacity. You will only be successful if you can convince the Court that the Will-maker lacked capacity.

In summary, for capacity to exist the deceased must:

1) understand the notion of a will,

2) have an understanding of his/her assets; and

3) be able to appreciate the various claims upon his bounty.

With regard to the latter point, the Court will consider whether the deceased was suffering from a disorder of the mind or insane delusions, which affected his or her decision making.

If you intend to pursue a claim that the Will is invalid, you should place a caveat on Probate with the Supreme Court of NSW (assuming the assets of the estate are within NSW) as soon as possible to prevent a Grant of Probate of the last will being made. If Probate has already been granted, it may not be too late for you to bring a claim, but is always preferable to do so before Probate is granted.

If you can successfully prove that a will is invalid, all the Court will do is set that Will aside. Therefore, you would only bring such a claim if you were to receive a benefit under the second last will or under intestacy laws if there is no Will.

Before we could advise you whether a claim for invalidity would be likely to succeed, we would need to obtain clinical notes from doctors and hospitals that treated the deceased for their illness, obtain a report from the deceased’s treating doctor. If necessary an expert’s opinion would be obtained to interpret the clinical notes and the advice of the treating doctor.

We would be guided by the treating doctor and the specialist’s opinion in advising you whether you should proceed further with contesting the Will-maker’s capacity at the time of making their Will.

Court Authorised Wills for People Lacking Mental Capacity

In some circumstances the Court has power to order a will be made, altered or revoked on behalf of a person who lacks the required mental capacity. Anyone can make an application to the Court in this regard, although it is usually a family member, close friend or financial guardian of the person lacking capacity. The person on behalf of whom the application is made must be alive when the order is made. Evidence that must be provided to the Court includes (but is not limited to) the following:

1. Evidence of the person’s lack of mental capacity;

2. The size and nature of the person’s estate;

3. The person’s wishes with respect to their will;

4. The terms of any previous will;

5. Any person who would be entitled to the estate if the person died intestate (i.e. without a valid will);

6. The likelihood of anyone having a claim upon the estate;

7. The circumstances of any person who might reasonably expect to be provided for under the will;

8. If the Court orders that such a will be made or altered, then it is signed by the Registrar on behalf of the person lacking capacity.

The Court may order that the legal costs relating to such an application be paid from the person’s estate, although that will not always be the case, and so an applicant needs to be aware that they could be responsible for their own legal costs.

Please note: This is a brief summary of the Law in NSW. We recommend you not act on any matter without first obtaining professional advice.

Our Contested Estates team of Warwick Gilbertson, Natalie Darcy and Adrian Corbould have the understanding and experience to listen carefully to your problem and explain things clearly.

If you would like an assessment of your claim, just call one of our solicitors on

1800 763 224 – your starting point to peace of mind.

Disclaimer - This article is offered for general information purposes only. It is not offered as and does not constitute specific legal advice or opinion. The accuracy of the information is not guaranteed. You should not act or rely upon any of the information contained within this article without seeking the advice of a qualified solicitor who specialises in the particular area of expertise and jurisdiction that you require.