Contest A Will

Contesting a will, or making a family provision claim, is when an eligible person feels that the will of the deceased person needs to be adjusted or reevaluated. The NSW Family Provision Act (now largely covered by the Succession Act 2006 (NSW) is a law that provides eligible people with the right to seek a share or a greater share of a deceased person’s estate if they believe they have not been adequately provided for in the deceased person’s will.

The law is designed to ensure that the deceased person’s property is distributed fairly and equitably, taking into account the needs and circumstances of eligible persons. Under the Act, eligible persons who feel that they have not been adequately provided for in the will of a deceased family member may make a claim for provision from the estate. If you are considering challenging a will, our NSW Wills & Estates Helpline offers a free initial chat to discuss your situation.

Why You Would Contest a Will in NSW: Understanding the Grounds

There are many reasons why a family member or individual will make a family provision claim in Australia, particularly in NSW. Understanding the specific grounds for contesting a will is the first step:

Lack Of Testamentary Capacity

A will can be challenged if the will-maker lacked the necessary mental capacity (testamentary capacity) to understand the nature of their assets, the act of making a will, and the people who might reasonably expect to benefit when the will was made.

Undue Influence

A will may be contested if a third party improperly coerced, pressured, or manipulated the testator into making specific provisions in the will against their true wishes, meaning the will doesn’t reflect their actual intent.

Fraud Or Forgery

If a will was obtained by fraudulent means (e.g., the testator was deceived about the document’s contents) or if the signature is a forgery, it may be contested and invalidated.

Ambiguity Or Uncertainty

will can be challenged if its terms are unclear, vague, or uncertain, making it difficult for the court to interpret the testator’s true intentions for their estate.

Failure To Meet Formal Requirements

A will may be invalidated if it doesn’t meet the strict legal formalities required for its execution in NSW, such as proper signing by the testator and correct witnessing procedures.

Revocation

A will can be challenged if there’s evidence the testator revoked it before their death (e.g., by creating a later valid will or by intentionally destroying the previous one). The court may then need to determine which will is valid.

Family disputes

Family members and other eligible persons may contest a will if they feel unfairly treated, left out, or believe the provision made for them is inadequate for their proper maintenance, education, and advancement in life, considering their financial needs and relationship to the deceased.

If you need assistance with a law relating to a will dispute in NSW, or believe you have grounds for challenging a will, contact our NSW helpline to help you get legal services and support during the process.

How to Make a Family Provision Claim in NSW: Process and Eligibility

To contest a will after probate (or sometimes even before), eligible individuals in NSW who feel that they have not been adequately provided for in the will and property of a deceased relative must follow a set of guidelines and a strict process. Understanding who can contest a will in NSW and the steps involved is crucial.

Who Can Contest A Will In NSW?

Eligible persons under NSW law, specifically the Succession Act 2006 (NSW), typically include:

Spouses (including de facto partners at the time of death)
Children of the deceased (including adopted children and sometimes stepchildren if they meet certain criteria)
Former spouses
Grandchildren who were wholly or partly dependent on the deceased at any point
Any individuals who were wholly or partially dependent on the deceased at any given time and were members of the deceased’s household.
A person with whom the deceased was living in a close personal relationship at the time of their death.

Note: While the original text included “siblings,” siblings are generally NOT eligible persons for a family provision claim in NSW unless they fall into one of the dependency categories above. It’s important to get specific advice on this.

Getting Legal Advice & The Claim Process

The next step is to seek legal advice from a professional with expertise in family provision claims and will contest litigation. One of our provision lawyers can assist individuals in understanding their legal rights, assessing their eligibility, discussing the strengths of their potential claim, and providing guidance throughout the process. This often involves:

Initial Assessment: Discussing your situation and the will.
Gathering Evidence: Collecting information about your needs, your relationship with the deceased, and the estate’s details.

Negotiation/Mediation: Attempting to resolve the dispute with the executor and other beneficiaries without going to court. Many claims are settled this way.

If You Are Unable To Reach A Settlement (Court Action)

If the parties involved cannot reach a settlement in the matter, court proceedings may be commenced by filing a Summons in the Supreme Court of NSW. At the hearing, various factors will be considered by the Court as outlined in the Succession Act 2006 (NSW), including:

The size and nature of the deceased’s property and estate (including any notional estate).
The relationship between the person claiming and the deceased.
The financial resources and present and future needs of the claimant, other beneficiaries, and other eligible persons.
Any contributions (financial or non-financial) made by the claimant to the deceased’s estate or welfare.
The character and conduct of the claimant.
The deceased’s reasons (if known) for the dispositions in the will.

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Frequently Asked

Questions

Who can contest a will in New South Wales?

In New South Wales, an “eligible person” as defined under the Succession Act 2006 (NSW) (see list above) can make a family provision claim if they believe they haven’t been adequately provided for. Separately, any person with a legitimate financial interest in the estate (like potential beneficiaries under a prior will or next of kin if the will is invalid) can challenge the validity of the will itself based on grounds like lack of capacity, undue influence, or fraud.

When to contest a will in NSW? What are the time limits?

This is extremely important. For family provision claims in NSW, you generally must file your application with the Court within 12 months from the date of death of the deceased. While the original content mentions 6 months from probate for contesting validity (e.g., via a Caveat if you believe the will is invalid due to issues like fraud before probate is granted), the ‘12-months from the date of death rule’ is critical for family provision claims. The Court can grant an extension in limited circumstances, but it’s difficult. It’s crucial to seek legal advice urgently due to these strict time limits.

How to contest a will in NSW?

The process of contesting a will in New South Wales, Australia, typically involves first seeking legal advice to understand your rights and the strength of your claim. For a family provision claim, this may lead to negotiations, mediation, and if necessary, filing a Summons in the Supreme Court. For challenges to a will’s validity, it may involve filing a Caveat in the Probate registry. Our lawyers will assist you throughout the entire process and can represent you in court.

What to expect when contesting a will?

When contesting a will, it’s important to be aware that the process can be complex, emotionally draining, and time-consuming. It’s also important to understand that the outcome is not guaranteed. However, with the help of our experienced dispute lawyers, you can expect clear and honest advice, comprehensive representation, and a commitment to achieving a fair resolution for your inheritance dispute.

How much does it cost to contest a will in NSW? Is "No-Win No-Fee" available?

Your initial consultation with the NSW Wills & Estates Helpline is free and confidential. If you decide to proceed, we will provide you with a clear costs agreement explaining our fees. For many will contest and family provision claims, we may offer a “No-Win No-Fee” arrangement (conditions apply), meaning you generally only pay our legal fees if your claim is successful. We will discuss this transparently with you.

NSW Wills & Estates Helpline can be contacted on 1300 679 222. Our helpline reps are well versed in all things related to Will & Estate disputes. If there is an issue we can’t answer over the phone, we have access to a mountain of resources so that we can call you back within the day to provide answers.

Due to time differences across states, we recommend leaving a voicemail if your call is not answered. We promise to return your call within the day taking note of time differences.

Our phone helpline is manned Monday to Friday, 8.30am – 5.00pm (AEST). Our Facebook social media page is manned 7 days a week and we respond to direct messages quickly. In fact, most of our enquiries come via Facebook private chat.