A few years ago my brother came to my house and told me what was in his Will which was prepared by an independent solicitor and his ex-wife who still lived in the property and who works in a legal office, has given Probate a Will that is nothing like my brother's wishes giving her everything and I believe she has typed it up herself and friends are the witnesses. She has also signed the Will on each page in the margin along with her beneficiary. How can I challenge it when I have no proof and have no copies of his signature or handwriting and I don't know who wrote the Will he told me about (am currently contacting local solicitors) . The ex-wife got particularly nasty and refused to give me a copy of the Will which I have since obtained through the Court. My brother's signature is almost identical to the ex-wife's in size, length and pen stroke/depth and I know it is not my brother's. My brother believed he owned half of the property and he wanted to leave his half to his 13 nieces and nephews. The ex-wife also wants his super even though he had a binding nominee and if that is our mother, then the ex-wife is her Power of Attorney so she can pretty much do what she wants and isn't telling us the remaining siblings anything and has been hiding things from us for years. Would appreciate any suggestions.
NSW Contesting a Will and chanlenging the validity of a Will
- Thread starter My Brother's Sister
- Start date
-
- Tags
- contesting a will will
Hi My Brother’s Sister,
Get a private solicitor.
To have any possibility of challenging this after probate has been granted, you need to meet a range of conditions, and it is up to you as the alleged beneficiary to prove the will is invalid, based on information that wasn’t available earlier. By this stage, the court has already determined that the will in question is valid and legally verified, as signified by the grant of probate.
The evidentiary burden is pretty high:
1. You have to prove the existence of this will made a few years ago;
2. You likely have to prove that the new will allegedly already assessed by Supreme Court to be valid does not supercede the older will;
3. You likely have to prove if the new will was forged that it was a forgery - signature sample may not be a problem if you locate the local solicitor made a few years ago - any lawyer would have to do an ID check on their client - 100 points; and
4. This is potentially a tricky one - time limit to bring a case issue - there is no statutory time limit generally but were ”ex-wife” beneficiary assuming the new will was forged in on it or acting in good faith - if good faith, court may consider the issue addressed and (at least in NSW to my understanding) be reluctant to reopen a case when the bequeath have been spent.
As an aside, even if the “ex-wife” looks like she was being a jerk, unless you can prove she did any form of forgery she was not behaving in an manner that is actionable I don’t think - a valid power of attorney with no relevant limitation can sign a superannuation nomination form while your brother was still alive; she as the executor can claim you don’t wish to pay a fee or some other excuse for not providing you a copy of the will even though as a sibling you could potentially be a beneficiary if your brother died interstate (without a valid will). Unless you have proof, it is entirely possible for the court to form the view that your brother made a will to you in favour of family, change his mind sometime later in favour of the ”ex-wife” with a superseding new will without telling you.
Conclusion - all the above is moot until and unless you first locate the local solicitor who prepared and may have the original will in their possession a few years ago. But then that would only be the beginning of something you should think long and hard about if you wish to pursue.
Good luck!
-Nighthelyn
Get a private solicitor.
To have any possibility of challenging this after probate has been granted, you need to meet a range of conditions, and it is up to you as the alleged beneficiary to prove the will is invalid, based on information that wasn’t available earlier. By this stage, the court has already determined that the will in question is valid and legally verified, as signified by the grant of probate.
The evidentiary burden is pretty high:
1. You have to prove the existence of this will made a few years ago;
2. You likely have to prove that the new will allegedly already assessed by Supreme Court to be valid does not supercede the older will;
3. You likely have to prove if the new will was forged that it was a forgery - signature sample may not be a problem if you locate the local solicitor made a few years ago - any lawyer would have to do an ID check on their client - 100 points; and
4. This is potentially a tricky one - time limit to bring a case issue - there is no statutory time limit generally but were ”ex-wife” beneficiary assuming the new will was forged in on it or acting in good faith - if good faith, court may consider the issue addressed and (at least in NSW to my understanding) be reluctant to reopen a case when the bequeath have been spent.
As an aside, even if the “ex-wife” looks like she was being a jerk, unless you can prove she did any form of forgery she was not behaving in an manner that is actionable I don’t think - a valid power of attorney with no relevant limitation can sign a superannuation nomination form while your brother was still alive; she as the executor can claim you don’t wish to pay a fee or some other excuse for not providing you a copy of the will even though as a sibling you could potentially be a beneficiary if your brother died interstate (without a valid will). Unless you have proof, it is entirely possible for the court to form the view that your brother made a will to you in favour of family, change his mind sometime later in favour of the ”ex-wife” with a superseding new will without telling you.
Conclusion - all the above is moot until and unless you first locate the local solicitor who prepared and may have the original will in their possession a few years ago. But then that would only be the beginning of something you should think long and hard about if you wish to pursue.
Good luck!
-Nighthelyn
Thanks for your reply. We know it is a tall ask and I can only do what I can do and hope that someone somewhere sees or hears something and does the right thing. I know the Will she presented is forged. It is a mishmash of two parts, his is very basic and gives everything to her and her part has points in it as to what she wants done and mentions her super etc. She was there when my brother told me about their new Wills and what he wanted to do and because our sister who had died about 4 years earlier was ripped off by a person who was in the habit of befriending dying women and collecting their super and property etc, my brother wanted to tie his estate up so it went to who he wanted it to go to and that is why he called in to see me that day on the way home from the solicitors and the ex-wife was very nervous that day and she told me what was in hers which is different to her part in his. After his death, the ex-wife told me she was in the process of writing a new Will but my brother died too quickly and it wasn't finished and wasn't signed and I believe she finished it off with a mix of the old and the new hence the two different halves and forged/signed his signature which she has been doing for years as he was very sick for a long time. Friends of her signed as witnesses and she and her main beneficiary signed in the right hand column which I am told is very unusual. She also ripped into me when I asked her about his Will when we the siblings didn't hear anything and had mentioned he had a super nominee but there is nothing in his Will re his super when there should have been and she had super noted in her part. I know its messy and its up to us to get evidence but she's not going to give it to us and I will write again to the local solicitor's who haven't replied as yet with my fingers and toes crossed. Her behaviour leading up to his death ie stopping us from visiting and cancelling visits, interrupting the visits we did have and controlling all the talk and sitting between me and my brother and not allowing him to talk and answering for him etc. Her behaviour at the funeral and the wake was very rude and cold to me and my family and we were the only family there due to Covid and people not being able to travel and her behaviour afterwards have all been unnatural and quite nasty and she verbally attacked my eldest brother recently as well. I know the cost of pursuing a claim if we can get evidence but his half of the property would make it worthwhile. She was very nervous around me before my brother died and afterwards and when we got a copy of the Will from the Court, I knew why. She has to live with what she has done and I have to try as much as I can to honour my brother's wishes. There was also $300K in the bank from the sale of an investment property my brother owned and she wanted the lot and has managed to get the lot. There's a million or two reasons why that Will and his signature are forged. My brother wanted to help his nieces and nephews and family was important to him as they had no children of their own. Thanks for listening and replying.
Similar threads
