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Contested Wills: Understanding Your Rights in NSW
Contested wills refer to legal disputes that arise concerning the validity of a deceased person’s will or the fairness of its provisions. These situations often involve a formal challenge to a will in the Supreme Court of NSW. Probate lawyers specialise in handling such cases, which can be complex, emotionally charged, and require a nuanced understanding of the Succession Act 2006 (NSW).
Our experienced probate lawyers provide expert legal representation to individuals who are either challenging a will (disputing its fundamental validity) or contesting a will (typically seeking greater provision from the estate, often through a Family Provision Claim). We help you navigate the intricate legal process to ensure your interests are protected every step of the way.
Why Are Wills Contested? Exploring the Grounds For Dispute in NSW
There are various reasons why a will may be challenged or contested in New South Wales. It’s crucial to distinguish between challenges to a will’s validity and claims for further provision:
Challenges to the Validity of a Will
These disputes question whether the will document itself is legally sound. Common grounds include:
- Lack of Testamentary Capacity: The person making the will (the testator) did not have the necessary mental understanding of their actions, the extent of their assets, or who their beneficiaries were.
- Undue Influence: The testator was coerced, pressured, or manipulated into making the will, or specific provisions within it, against their true wishes.
- Fraud or Forgery: The will was created through deceitful means, or the testator’s signature was forged.
- Improper Execution: The will was not signed, witnessed, or executed according to the strict legal formalities required by NSW law.
A Later Will: A more recent, valid will has been discovered, which revokes the will being presented.
Contesting a Will for Inadequate Provision (Family Provision Claims)
This is one of the most common types of will disputes. It occurs if an “eligible person” (as defined by the Succession Act NSW) claims they have not received a fair or adequate share from the estate for their proper maintenance, education, or advancement in life.
Estate disputes can be a complicated and sensitive process for family members, often involving taking legal action and appearing before a court. If you are considering contesting a will in NSW or challenging its validity, it is important to discuss your legal rights and the strength of your potential claim with us.
Who Can Contest a Will in New South Wales?
In New South Wales, specific individuals have the legal right to contest a will if they believe they have been inadequately provided for. This is primarily governed by the Succession Act 2006 (NSW).
These individuals, known as “eligible persons”, typically include:
- Spouses (including a de facto partner)
- Children (including step-children and adopted children)
- Former spouses or de facto partners
- Grandchildren who were wholly or partly dependent on the deceased person
- Individuals who were wholly or partly dependent on the deceased person and were a member of the deceased’s household or in a close personal relationship with the deceased
- Individuals who were in a close personal relationship with the deceased person at the time of their death.
However, simply being classified as an “eligible person” does not automatically grant the right to make a successful family provision claim. One must also demonstrate to the court that they have not received adequate provision from the estate for their proper maintenance, education, and advancement in life. Various factors such as their financial need, the size of the estate, their relationship with the deceased, and the needs of other beneficiaries are considered. Presenting compelling reasons as to why they should receive a larger portion of the estate is crucial.
It is highly recommended to seek the assistance of our qualified solicitor or barrister if you are uncertain about your eligibility to make a claim or the merits of your case.
Loved ones’ will being contested? Contact our helpline for further information on how we can help you deal with a contested will.
Loved ones will being contested? Contact our helpline for further information on how we can help you deal with a contested will.
When Can a Will Be Contested in NSW? Understanding Strict Time Limits
The period for challenging a will or making a family provision claim in NSW varies according to the type of claim being made. Adhering to these time limits for contesting a will in NSW is critical.
Inadequate Provisions (Family Provision Claims)
If a person is seeking to contest a will on the basis of inadequate provision (i.e., making a Family Provision Claim under the Succession Act NSW), they must act quickly. The claim must generally be initiated within 12 months of the date of the deceased’s death. However, this deadline can sometimes be extended by the court in special circumstances, but this is not guaranteed, so prompt action is essential.
Challenging an Invalid Will
If a person wishes to challenge a will based on its validity (e.g., due to lack of capacity, undue influence, or fraud), the time limits can be different. Generally, there might be a longer window, but specific circumstances, particularly in cases of fraud or misconduct, can affect these limits. Due to the legal complexities involved, whether it be exploring mediation or needing to go to court, seeking the guidance of an experienced lawyer is advisable to understand the applicable timeframes.
What Happens When a Will is Contested in NSW? The Legal Process
The following steps usually occur in the process of contesting a will in NSW:
Formal Claim and Initial Court Process
- Filing a Summons: The person contesting the will (the “claimant” or “plaintiff”) files a formal claim, typically a Summons accompanied by an affidavit outlining their evidence, in the Supreme Court of NSW.
- Executor’s Response: The executor of the will (the person responsible for carrying out the instructions in the will and defending the estate) will then file a response to the claim, usually including their own affidavit evidence.
- Evidence Gathering (Discovery): Both sides may have the opportunity to gather further evidence, which can include witness statements, medical records, financial documents, and other relevant facts.
- Mediation: Before a matter proceeds to a full hearing, the court often requires the parties to attend mediation. This is a confidential process where an independent mediator helps the parties try to reach a settlement agreement, potentially saving time and costs. Many will disputes are resolved at this stage.
Court Consideration: If mediation is unsuccessful, the court will then consider the claim and all evidence presented by both sides at a hearing.
If the Will is Deemed Invalid
If the court determines that the will being challenged is invalid (e.g., due to lack of capacity or undue influence), it will declare the will void. The deceased person’s trusts and assets will then be distributed according to the terms of any valid prior will, or if there is no valid prior will, according to the rules of intestacy as set out in the Succession Act, NSW.
If the Will is Valid, But Inadequate Provision is Found (Family Provision Order)
If the court determines that the will is valid, but the distribution of assets is unfair or unreasonable for an eligible person who has made a Family Provision Claim, it may make orders to alter the distribution of assets. The court will consider various factors, including the claimant’s financial need, their relationship with the deceased, the size of the estate, and the competing needs of other beneficiaries. If a settlement cannot be reached through negotiation or mediation, a court hearing will be necessary to determine the outcome.
How to Defend a Contested Will in NSW
If you are the executor of a will that is being contested, it’s important to seek legal advice for contested wills from a qualified solicitor or barrister to help you understand your duties and defend the claim appropriately. Here are some general steps that may be involved in defending a contested will in New South Wales:
- Obtain Legal Representation: Engage a solicitor experienced in estate litigation.
- Gather Evidence: Collect all relevant documents, including previous wills, financial records, medical records of the deceased (if capacity is in question), and any notes or statements from the deceased regarding their intentions.
- File a Response: Your solicitor will prepare and file the necessary responses and evidence with the court.
- Participate in Mediation: Engage constructively in any mediation process.
- Adhere to Executor Duties: Remember your primary duty is to uphold the terms of the will (if valid) and act in the best interests of the estate and its beneficiaries.
Defending a contested will can be a complex and emotionally challenging process. Contact our helpline to help you get a qualified legal professional to guide you through the process and represent your interests in court.
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.
