The grant of probate is based on the understanding that the Will is valid and represents the last testamentary intentions of the deceased. If you believe that the Will that is being propounded as the last Will of the deceased is not valid or that the application for probate should not continue for some other reason, then any challenge should be made before probate is granted and before the executor has dealt with the assets of the estate.
Some circumstances where interested persons may seek to challenge a Will include where:
- The Will is not the last Will of the deceased;
- The testator lacked testamentary capacity at the time the Will was made;
- The testator lacked knowledge and approval of the Will;
- The Will is a forgery, was made under undue influence or pressure, or is fraudulent;
- The Will is not executed in accordance with the Succession Act 2006 (NSW); or
- The testator revoked the will in his or her lifetime.
If you are concerned about a pending or current application for probate in a particular estate, you may, provided you have a legitimate interest (for example, you are the executor or beneficiary under a different Will which you claim is the last valid Will of the deceased) file a caveat which prevents a grant being made until the caveat lapses or is withdrawn.
(Creditors of the deceased and family provision claimants are not interested persons for the purpose of contested probate proceedings).
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.
If the dispute can’t be resolved amicably, then you may file an appearance which will result in you being joined as a defendant in contested proceedings. The matter will then be directed to proceed by way of pleadings (statement of clam).
For assistance please contact Senior Associate Solicitor Elisha Edwin
