In New South Wales, there are specific legal grounds to challenge a Will’s validity, and the Court can set it aside if those grounds are made out.

When might a Will be invalid?

A Will may be challenged if there is evidence it was not properly made or does not truly represent the deceased person’s intentions. Common validity issues include:

• Lack of testamentary capacity
The person making the Will (the “testator”) must understand, at the time of making the Will:

• what a Will is and what it does
• the general nature and value of their assets
• who might reasonably expect to benefit (and why they are included or excluded)

• Undue influence

A Will can be challenged if someone pressured or coerced the testator into making gifts they did not freely choose.

• Suspicious circumstances

Even where a Will appears properly signed, concerns may arise if the circumstances suggest it may not reflect the testator’s true intentions, for example, where a major beneficiary was heavily involved in preparing the Will.

• Fraud or forgery

If the Will (or signature) is not genuine, or if the testator was misled into signing something they did not understand, the Court may find the Will invalid.

• Improper execution (signing and witnessing problems)

Wills must generally meet formal signing and witnessing requirements. If these weren’t followed, the Will may be invalid (although in some cases the Court can still accept an informal document as a Will).

What happens if a Will is found invalid?

If the Court sets aside the Will, the estate may be dealt with under:

• an earlier valid Will, if one exists; or
• the rules of intestacy, if there is no valid Will.

Is this the same as a family provision claim?

No. A validity challenge argues the Will itself is not legally effective. A family provision claim accepts the Will is valid but argues it does not make adequate provision for an eligible person. The right approach depends on the facts.

What to do if you have concerns

If you suspect a Will may be invalid, it’s important to act promptly and seek legal advice.  Validity disputes can move quickly once probate is applied for.