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NSW Not the Most Recent Will - Can it be Contested?

Discussion in 'Wills and Estate Planning Law Forum' started by g spencer, 27 November 2014.

  1. g spencer

    g spencer Member

    27 November 2014
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    I am named as executor of a will in relative's will along with her son. The son has presented a will to a solicitor. I helped his mother draw up the will using a Will Kit. The distribution of estate was 2 thirds to son and 1 third to daughter. Later she changed the will to Half / Half. We did this by filling out a new Will Kit. I thought the earlier version was destroyed. The son has presented the earlier version to the solicitor. He will only deal with me through the solicitor, so everything will be known by the solicitor.

    What are the implications if I tell the solicitor that this is not the correct will?

    I do not want to delay the finalising of the estate as both the son and daughter could do with the cash, but I think the situation is unfair.

    Does the daughter have to contest the presented will (with my evidence) or can I just say it is incorrect?

    Thanks for any help.
  2. Rod

    Rod Well-Known Member

    27 May 2014
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    You have specific duties as executor and you must follow the law. Always use the latest will as the starting point. If there is a legal problem of any kind with the last will, then that problem needs to resolved before you would even consider any earlier will. You, as executor, have a legal duty to follow the law, else you can be sued.
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  3. Sophea

    Sophea Guest

    Hi g spencer,

    the Will made most recently in time that is properly executed will take precedence, and will be the one for which probate is granted. If the son is trying to get probate on the former Will to benefit himself when there is a later valid will, you have a duty to bring the later Will to the attention of the solicitor. You should bring this to the attention of the solicitor, as the more recent will reflects your relative's last wishes which you have a duty to give effect to as an executor. Once the solicitor has this information they will tell the Son which Will must be granted probate.

    The son will only have grounds to contest the more recent Will if he can show that it wasn't properly executed, that his mother lacked capacity when she executed it, was unduly influenced or signed the will under duress. To succeed in a family provision application the son would have to prove some compelling reason why he should have received greater provision from his mother since a 50:50 split between him and his sibling sounds pretty fair.

    Definitely bring it to the attention of the solicitor, this is your duty as executor.
  4. Sarah J

    Sarah J Well-Known Member

    16 July 2014
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    I agree with the above. A later validly executed will automatically revokes the first unless the later will expressly says otherwise. The son should not be distributing the estate according to the former (possibly revoked) will and if he does and it later turns out the instructions are wrong or the estate is wrongfully administered, the son may need to indemnify the rightful beneficiaries for any part of the estate he misused. If the son (or his solicitor) is applying for probate, you should bring up the more recent version of the will to challenge that one. The two wills should have been executed by the solicitor. If so, the solicitor should be bringing this to the attention of the son and rightful executor.
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