Can you challenge a will based on someone’s age?

Published 25 Nov 2015

In essence, age is just a number. We are all growing older and our ability to undertake tasks and make decisions is getting harder and harder.

An example of a process that becomes more difficult with age is formulating a will that reflects our current thoughts and feelings. It can be very easy to either forget or add people to a last will without having the capacity to understand the decision that is being made. This also opens the door for the will to be challenged.

Is it possible to challenge a will based on age?

As we all age at different rates, it wouldn’t be right to say that you can challenge a will solely on the deceased’s age. Instead in NSW, the issue of testamentary capacity can be raised.

According to the State Library of New South Wales, everyone who creates the will is required to have testamentary capacity. To be able to produce a will that meets the expectations of family and friends, the law states that someone’s memory, mind and understanding of the process must all be functional.

If you believe that someone didn’t have testamentary capacity when they formulated the will, and you didn’t get the appropriate provision, there is an opportunity to contest the will. However, it is important to remember that this can be a complex process and it’s wise to seek the advice of a professional lawyer who can investigate your case and take it to court on your behalf.

What can constitute poor testamentary capacity?

Of course, it is your responsibility to prove that somebody didn’t have the testamentary capacity required to create a will. This can include:

  • Not understanding what property or assets they own
  • Not understanding what a will is or approve the contents of the estate allocation
  • Not understanding the worth of the estate
  • Not understanding the moral claim of deciding who gets what assets in the will

The health of the individual can also play a major part in whether they were able to create a legal will. If you believe that someone was too sick to be capable of making a will, this could also form the base of a challenge.

Contesting a will in NSW

Contesting the validity of a will is a tricky process. As such, it is critical to get in touch with a lawyer who can lead your case in the right direction.

For more information on starting this process, contact us today.

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