What is the process for challenging a will?

In NSW, a will cannot be contested simply because it seems unfair. Only interested or eligible persons can challenge a will, and there must be valid legal grounds. Common reasons for disputing a will include:

Lack of testamentary capacity

A will may be invalid if the testator lacked the mental capacity to understand the nature and effect of their will at the time it was made. This includes understanding their assets (including deceased-owned property), recognising moral obligations to family and not being influenced by a mental disorder or delusion.

Fraud

A will can be challenged if it was created or altered through fraud, such as if a beneficiary manipulated the testator or forged documents. Evidence must show that the fraud directly affected the will.

Undue influence

If the testator was coerced or pressured (through threats or manipulation) into making or changing a will, it may be declared invalid. Ordinary persuasion does not qualify as undue influence.

Forgery

A will is invalid if it was signed or created by someone other than the testator. Evidence must demonstrate how the will was forged.

Lack of knowledge or approval

It is generally assumed that the testator knew and approved the contents of their will. A challenge on this ground requires evidence that the testator was unaware of or did not approve the document.