What is the difference between challenging and contesting a will?

In the context of wills and estates in New South Wales, the terms "challenging" and "contesting" can be somewhat vague or indistinguishable terms. However, they can be used describe different legal actions, each with distinct purposes and grounds.

Challenging a Will

Challenging a Will involves questioning the validity of the Will itself. This can be based on several grounds, including:

1. Lack of Testamentary Capacity: Arguing that the testator did not have the mental capacity to understand the nature and effect of making a will at the time it was executed or the capacity to instruct someone to prepare it on their behalf.
2. The absence of Knowledge and Approval: Asserting that the testator did not understand or appreciate the effect of the Will. This can also be applied if there are suspicious circumstances surrounding the preparation or execution of the Will giving rise grounds that the testator didn’t know or approve of its contents.
3. Undue Influence: Claiming that the deceased was coerced or improperly influenced by another person when making the will.
4. Fraud or Forgery: Alleging that the will was forged or that the deceased was deceived into signing it.
5. Improper Execution: Asserting that the will was not executed in accordance with the legal requirements, such as not being properly witnessed.

If a challenge to the will is successful, the will is declared invalid, and the estate may be distributed according to a previous valid will or, if none exists, under the rules of intestacy.

Contesting a Will

Contesting a will, on the other hand, typically refers to making a family provision claim. This does not question the validity of the will but seeks to alter the distribution of the estate on the grounds that the will does not provide adequately for an eligible person.

To contest a will through a family provision claim, the eligible person must demonstrate that they have not received adequate provision for their proper maintenance, education, or advancement in life. The court will consider various factors, such as the eligible person's financial needs, the size of the estate, and the nature of the relationship with the deceased.

If a person is successful in making a family provision claim the Will is not revoked or invalidated but instead adjusted to make provision for their claim.

Conclusion

In summary, challenging a Will focuses on the validity of the Will itself, while contesting a Will through a family provision claim seeks to adjust the distribution of the estate to provide for those who the Court determines have been inadequately provided for. Both processes involve different legal grounds and outcomes, and it is advisable to seek legal advice to navigate these complex proceedings effectively.

Contact us for a free thirty-minute consultation with a Will dispute lawyer.

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.

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