What evidence is needed when contesting a will?

Published 05 Jun 2017

You may decide to pursue an inheritance dispute for many reasons, whether you doubt the validity of the will or feel the deceased did not adequately provide for your needs from their estate.

Nevertheless, you will be expected to provide evidence to support your case, particularly if you are alleging the will is forged, which is notoriously difficult to prove.

Enlisting the services of experienced will dispute lawyers can help you build a strong case, so let's take a look at some of the relevant evidence that may sway a settlement in your favour.

1. Your eligibility and relationship with the deceased

You must be eligible to contest the will, so proving that you fit the criteria specified under the Succession Act 2006 is crucial. If you are hoping to win a family provision claim, you should also offer evidence of the strength of your relationship to the deceased. While estrangement won't necessarily mean your claim is rejected, the courts often look more favourably on close ties.

2. Proof of lack of testamentary capacity

One way of contesting a will is to show the deceased did not have the testamentary capacity write one. This may occur when an individual has dementia or another mental illness that affects their cognitive capabilities. Medical records or evidence from relatives or close friends regarding the deceased's state of mind is therefore important.

3. Strong evidence of forgery

Claiming that a will is forged is a big accusation and shouldn't be taken lightly. It is also very hard to prove; you may need to consult a handwriting expert to check discrepancies in signatures, or contact witnesses to confirm the will is valid. Even if the will is a forgery, you'll likely have to find a previous will to prevent a ruling of intestacy.

4. Information regarding your financial circumstances

A number of factors are taken into account when plaintiffs pursue family provision claims, one of which is the individual's need for financial assistance. Do you need money to support your education, health, career or business? If so, the executor of the estate or a judge may rule you as deserving a larger share of the estate to meet your ongoing needs.

These are just four examples of the evidence you can obtain to bolster your case, but there are many ways to strengthen your will contestation or claim.

Please contact Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers for more information about contesting a will in NSW.

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