A person who believes that a document purporting to be a will is invalid because of some vitiating element, such as lack of mental capacity on the part of the testator or testatrix, the failure of the will to meet formal requirements or the exercise of undue influence upon the conductl of the deceased prior to or contemporaneously with the execution of the document, is generally best advised to act quickly in lodging a caveat against the granting of probate to the will  in the Supreme Court of New South Wales.

The lodging of a caveat will result in the examination of the circumstances regarding the execution of the document more thoroughly than in the normal course, (in which the documentation and supporting material is examined by Court officers as an administrative exercise).

It is generally the obligation of the executor, or person "propounding" the will to establish to the Court''s satisfaction the appropriateness of granting probate. This is an important consideration in relation to ascertaining the identity of any persons who should bear the costs of a contested application.

Whilst it is possible for a party to challenge the granting of probate retrospectively  (after it has been granted)  the onus of proving that probate should be set aside will rest upon the person claiming this relief.

It is important for persons believing that there are suspicious circumstances surrounding the provenance of a will (for example these might arise by the refusal of a family member having possession of the document to provide a copy to persons entitled to one) to act immediately and obtain legal advice.

Smith Reid Attorneys maintains an active practice and interest in all matters relating to wills and probate and you can seek advice from us by dialling (02) 9517 1988, or submit an enquiry form below.