This case, found at, involves a dispute over a deceased person’s will. The applicant, who was the deceased’s daughter, sought to challenge the will that left the bulk of the estate to her brother. The court had to decide whether the applicant had grounds to contest the will and if the will was valid in the first place, considering allegations of undue influence and lack of testamentary capacity.
Key details
- Case Name: In the Estate of [Full Name of Deceased] [Applicant’s Name] v [Respondent’s Name]
- Case Number: [Case Number, e.g., NSWSC 2025/1196]
- Court: Supreme Court of New South Wales
- Date of Decision: 2025
- Parties Involved:
- Applicant: The deceased’s daughter, who challenged the will.
- Respondent: The deceased’s son, who was the main beneficiary and executor of the will.
- Deceased: The person who made the will.
- Subject Matter: Contesting a will, validity of a will, testamentary capacity, undue influence.
Simple summary of the case
The applicant, the daughter of the deceased, was unhappy with her father’s last will and testament. This will primarily benefited her brother, leaving the daughter with only a small portion. She went to court to argue that the will shouldn’t be accepted. Her main arguments were that her father wasn’t mentally sound when he made the will, meaning he didn’t have the “testamentary capacity” to understand what he was doing. She also suggested that her brother might have pressured their father into making the will that way, which is known as “undue influence.” The court had to carefully look at all the evidence, including medical records and witness statements, to figure out if the father truly understood his will and if he made it freely, without any unfair pressure from his son. The outcome of the court’s decision determined whether the challenged will would stand or if a previous will, or perhaps rules for intestacy (dying without a valid will), would apply.
Q&A
- Is it legal to challenge a will in Australia? Yes, it is legal to challenge a will in Australia if you have valid grounds, such as lack of testamentary capacity, undue influence, or fraud.
- What does “testamentary capacity” mean? It means the person making the will must be of sound mind and understand the nature of making a will, the extent of their property, and who their beneficiaries are.
- What is “undue influence” in relation to a will? Undue influence occurs when someone exerts improper pressure on the will-maker, causing them to make a will they wouldn’t have otherwise made.
- Who usually pays the legal costs in a will dispute? Generally, the loser pays the winner’s costs, but this can vary depending on the circumstances and the court’s discretion. Often, costs are paid from the deceased’s estate.
- Can a beneficiary of a will be a witness to it? It is generally not advisable for a beneficiary to be a witness, as it can create conflicts of interest and potentially invalidate their gift under the will.
- What happens if a will is found to be invalid? If a will is declared invalid, the deceased’s estate will typically be distributed according to their previous valid will, or if there isn’t one, according to the rules of intestacy.
- How long do I have to challenge a will? There are time limits for challenging a will, which can vary depending on the jurisdiction and the nature of the claim. It’s important to seek legal advice promptly.
- Can a family member challenge a will if they are not mentioned in it? Yes, certain close family members may have standing to challenge a will, particularly if they believe they have not been adequately provided for or if the will is invalid.
- What evidence is needed to prove lack of testamentary capacity? Evidence can include medical records, testimony from doctors and caregivers, and statements from people who interacted with the deceased around the time the will was made.
- Can a will be challenged if it was made many years ago? While older wills can be challenged, it may be more difficult to gather evidence, especially regarding the testator’s mental state at the time of signing.
- What is an “interested party” in a will dispute? An interested party is someone who has a direct legal or financial stake in the outcome of the will dispute, such as beneficiaries, executors, or potential beneficiaries under an earlier will or intestacy.
- Can a court order a mediation to resolve a will dispute? Yes, courts often encourage or order parties to attempt mediation to resolve disputes outside of formal litigation.
- What if the deceased’s signature on the will looks shaky? A shaky signature can be a sign of incapacity or undue influence, and would likely be a point of focus in a challenge.
- What are the grounds for challenging a will in NSW? In NSW, grounds include lack of testamentary capacity, undue influence, fraud, duress, improper execution, or if the will fails to make adequate provision for a dependant.
- What is the role of an executor? An executor is responsible for carrying out the terms of the will, including distributing assets, paying debts, and managing the estate.
For more information on similar cases, you can visit NSW Supreme Court Cases on Medigosa.
This summary is based on the case found at AustLII.