A recent court case has highlighted the difference between overturning a Will and challenging a Will under the Succession Act 2006 (NSW).
Two sisters attempted to have their father’s Will overturned in the NSW Court of Appeal, claiming that he did not have the mental capacity to make a Will due to his being affected by dementia. The court rejected their claim, upholding the previous finding that although the father did suffer from dementia, it did not deprive him of the capacity to weigh the claims of his daughters.
Read this Sydney Morning Herald article for more details about the case.
As our principal, Greg Martin, says:
Most people think that overturning a Will is about fairness, and about convincing the court to make the Will ‘fair’. Nothing doing.
The basic rule in Wills is that a Testator, the person who makes the Will, can do what they like. They can leave things unequally between their children, cut children out, leave nothing to their spouse, or basically do whatever they like. The law will not overturn such a Will, except in special circumstances.
This recent court case highlights the difficulties in trying to overturn a Will. There are only two ways to overturn a Will – either by proving testamentary incapacity or by proving undue influence. In order to prove testamentary incapacity, you will need expert medical evidence to show that the Testator did not understand what they were doing at the time they made the Will. In order to prove undue influence, you will need expert evidence to show that there was basically a gun to the head of the Testator when they signed the Will.
Of course, forged Wills are entirely different and can be overturned, provided that there is evidence of the forgery.
Instead of overturning a Will, there is also the option to challenge a Will by making a family provision claim under the Succession Act 2006 (NSW), formerly the Family Provision Act 1982 (NSW). The provisions in this act relate to the concept of ‘fairness’, but only in situations where there was a strong moral duty for the Testator to provide for somebody, that person has a need, and that need has not been fulfilled in the Will.
This is an area of law where you need to see an expert to get it right. Come along and see Greg Martin or Jacqueline Wainwright from Martin Bullock Lawyers, who can answer all your questions about challenging a Will, provide you with the best advice, and run your case for you if you decide to go ahead with it.