In NSW, a person with an interest in a deceased estate can challenge a will in the Supreme Court if they believe the Will is not valid. A person may believe a Will is not valid for a number of reasons, most commonly because it is suspected there has been fraud or forgery, because the deceased was subjected to undue influence, because the deceased lacked testamentary capacity or if this is not the last Will of the deceased.

A person can challenge the validity of a Will either before or after there has been a grant of probate. If you wish to challenge the validity of a Will, the first step is to find out whether there has been a grant of probate by contacting the Supreme Court.

If probate has not been granted, we highly recommend that you file a probate caveat, which will prevent the court from issuing a grant of probate. If a probate caveat is filed, the court will not make a grant of probate until the parties agree that the caveat can be removed or the court makes an order.

A probate caveat remains in force for 6 months from the date on which it is filed. The caveat must be served on any known applicants or potential applicants for a grant of probate or administration of the estate. The rules on probate caveats are covered under Part 78 Division 10 of the Supreme Court Rules 1970.

The applicant for probate may file a notice of motion for the caveat to cease to be in force if they believe that the caveator does not have a legitimate interest in the proceedings.

In the event the parties to the proceedings are unable to reach an agreement regarding the validity of the will and the removal of the caveat, one of the parties (generally the person arguing that the will is valid) will commence court proceedings so that a judge can determine whether the will is valid.

If you believe you have grounds to challenge the validity of a Will, it’s best to commence the process as soon as possible and preferably before probate is granted. Contact our team for a chat.