Challenging a Will in New South Wales

1. I wish to challenge my mother’s will on the grounds she lacked testamentary capacity. What orders can the court make in regards to my application?

The court can make a statutory will. Section 18(1) of the Succession Act 2006 (NSW) provides:

  • The Court may, on application by any person, make an order authorising:
    • a will to be made or altered, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity, or
    • a will or part of a will to be revoked on behalf of a person who lacks testamentary capacity.
  • An order under this section may authorise:
    • the making or alteration of a will that deals with the whole or part of the property of the person who lacks testamentary capacity, or
    • the alteration of part only of the will of the person.
  • The Court is not to make an order under this section unless the person in respect of whom the application is made is alive when the order is made.
  • The Court may make an order under this section on behalf of a person who is a minor and who lacks testamentary capacity.

2. What information is required in my application for an order to be made under section 18 of the Succession Act 2006 (NSW)?

Under section 19 of the Succession Act 2006 (NSW) the person must (unless the Court otherwise directs) give the Court the following information:

  • a written statement of the general nature of the application and the reasons for making it,
  • satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order under section 18 is sought,
  • a reasonable estimate, formed from the evidence available to the applicant, of the size and character of the estate of the person in relation to whom an order under section 18 is sought,
  • a draft of the proposed will, alteration or revocation for which the applicant is seeking the Court’s approval,
  • any evidence available to the applicant of the person’s wishes,
  • any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity,
  • any evidence available to the applicant of the terms of any will previously made by the person,
  • any evidence available to the applicant, or that can be discovered with reasonable diligence, of any persons who might be entitled to claim on the intestacy of the person,
  • any evidence available to the applicant of the likelihood of an application being made under Chapter 3 of this Act in respect of the property of the person,
  • any evidence available to the applicant, or that can be discovered with reasonable diligence, of the circumstances of any person for whom provision might reasonably be expected to be made by will by the person,
  • any evidence available to the applicant of a gift for a charitable or other purpose that the person might reasonably be expected to make by will,
  • any other facts of which the applicant is aware that are relevant to the application.

3. What must the Court be satisfied of before a section 18 application can be granted?

Section 22 of the Succession Act 2006 (NSW) provides the Court must refuse leave to make an application for an order under section 18 unless the Court is satisfied that:

  • there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a will, and,
  • the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity, and
  • it is or may be appropriate for the order to be made, and
  • the applicant for leave is an appropriate person to make the application, and
  • adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought.

4. What must the Court be satisfied of before a section 18 application can be granted?

Section 22 of the Succession Act 2006 (NSW) provides the Court must refuse leave to make an application for an order under section 18 unless the Court is satisfied that:

  • there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a will, and
  • the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity, and
  • it is or may be appropriate for the order to be made, and
  • the applicant for leave is an appropriate person to make the application, and
  • adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought.

5. Under what circumstances can the court rectify a will to carry out the testator’s intentions?

Under section 27 of the Succession Act 2006 (NSW) the court may make an order to rectify a will if satisfied the will does not carry out the testator’s intentions because:

  • a clerical error was made, or
  • the will does not give effect to the testator’s instructions.
  • A person who wishes to make an application for an order under this section must apply to the Court within 12 months after the date of the death of the testator.
  • However, the Court may, at any time, extend the period of time for making an application specified in subsection (2) if:
    • the Court considers it necessary, and
    • the final distribution of the estate has not been made.

6. What is the time limit to apply for rectification?

Within 12 months after the date of the death of the testator: section 27(2) Succession Act 2006 (NSW).

Can this time limit be extended?

  • the Court considers it necessary, and
  • the final distribution of the estate has not been made.

7. Can you give me a case example where an order for ratification of a will was successful?

In Levy Estate – Application of Samuels [2010] NSWSC 1014 Palmer J delivered the following judgement:

3 September, 2010

  • This is an application pursuant to s 18 of the Succession Act 2006 (NSW) for the revocation of a will of Rebecca Levy, dated 4 May 2010, on the ground that Mrs Levy lacked testamentary capacity at the time she made it. The revocation of the 4 May 2010 will would leave then, as operative, an earlier will made at a time when there is no question as to Mrs Levy’s testamentary capacity. The beneficiary of the 4 May 2010 will is a Mr Ian Wheatley.
  • The evidence shows that Mr Ian Wheatley became a tenant of Mrs Levy in her home, some three years ago. There is no relationship otherwise between Mrs Levy and Mr Wheatley; he is not related to her either by blood or by marriage. They did not know each other, apparently, before he became her tenant.
  • Mrs Levy is now 93 years old. She has been diagnosed as having dementia and suffering from severe cognitive impairment. A psychiatrist and a clinical neuro-psychologist have examined her recently. They have come to the conclusion that, although she appears at first impression to be in possession of her faculties, a closer examination reveals a severe cognitive impairment. Both come to the conclusion that, at the time she made the will in question, she lacked testamentary capacity.
  • The subject will was prepared by a solicitor, but the solicitor does not give evidence as to her own investigation of Mrs Levy’s testamentary capacity. It is quite possible that the solicitor, who had not met Mrs Levy previously, was deceived by the first impression which apparently Mrs Levy gives of being in possession of her faculties, and did not appreciate Mrs Levy’s true situation.
  • Mr Wheatley has been served with notice of these proceedings. I am satisfied by the evidence of the Plaintiff’s solicitor that Mr Wheatley is fully aware of these proceedings and has unequivocally declined to participate, saying that he wishes to have nothing to do with the subject will of Mrs Levy. Therefore, the only person who has an interest in the subject will has disclaimed any such interest.
  • I am satisfied that it is appropriate to grant leave to make this application and appropriate also to deal immediately with the substance of the application.
  • The requirement that Mrs Levy lacked testamentary capacity is amply satisfied by the medical evidence. Accordingly, I make orders in terms of paragraphs 1 and 2 of the Summons.
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