What are the grounds for contesting a will in NSW?

In NSW, you cannot contest a will simply because you believe it is ‘unfair.’ Rather, anyone considered an interested or eligible party must have valid reasons for disputing the will’s validity.

A will can be challenged on the below grounds:

H4: Lack of testamentary capacity

A will is invalid if the person creating it lacks the mental capacity to comprehend its significance and implications at the time of its making.

The test for capacity is outlined in the case of Banks v Goodfellow (1870) 5 QB 549 at 565[CM1] , and it includes four essential criteria that must be met when making a will:

• The individual must understand that they are making a will and what it entails.
• They must have a general understanding of the nature and extent of their property.
• They must recognise and appreciate any moral obligations towards family members, such as knowing who may have claims on their estate.
• They must not be suffering from a mental disorder or delusion that would influence the will in a way that would not have occurred if they were of sound mind.

Fraud

A will is considered invalid if fraud was involved in its making. This might mean that the individual who signed the will was not the testator, or that a subsequent will was created but has been destroyed or concealed.

To challenge a will based on fraud, you must provide evidence to the court that a beneficiary committed fraud with the intent to receive benefits under the will, and that this fraud directly influenced the creation of the will.

Undue influence

A will can be declared invalid by the court if it is proven that the testator was under undue influence when creating it.

Undue influence involves coercing the testator to draft the will in a certain way, which can include psychological or physical threats.

To succeed in a challenge on these grounds, you must provide evidence that the testator was coerced. Mere persuasion does not constitute undue influence.

Forgery

A will is invalid if it is a forgery, meaning it was created or signed by someone other than the testator. To challenge a will on this basis, you must present evidence demonstrating how the will was forged.

The testator did not know or approve the will’s contents

When a person creates a will, it is generally assumed that they were aware of and approved its contents.

To contest a will because the testator was not aware of or did not approve its contents, you must provide evidence demonstrating that the person who made the will was not aware of or did not approve the document’s contents.