Contested Wills & Estates: Protecting Your Inheritance

The loss of a loved one is an emotionally challenging time, and discovering that a will doesn’t reflect what you believe were their true intentions, or finding yourself excluded entirely, can compound your grief with confusion and financial stress. Estate disputes affect thousands of NSW families each year, often arising when emotions are already raw and family dynamics are strained.

At NSW Wills & Estates Helpline, we understand that challenging a will isn’t just about money, it’s about fairness, family relationships, and honouring what you believe your loved one would have wanted. Our experienced team provides compassionate guidance through the complex legal landscape of contested estates, helping you understand your options and protect your rights during this difficult time.

Understanding Contested Wills and Estate Disputes

A contested will occurs when someone challenges the validity or fairness of a deceased person’s will. These disputes can arise for various reasons, from questions about the deceased’s mental capacity when making the will to concerns about undue influence from other beneficiaries. In NSW, the law recognises that certain family members and dependents may have legitimate claims to an estate, even if they weren’t adequately provided for in the will.

The Succession Act 2006 (NSW) provides important protections for eligible persons who believe they haven’t received adequate provision from a deceased estate. Understanding whether you qualify as an eligible person and the strength of your potential claim requires careful legal analysis of your specific circumstances and relationship with the deceased.

Who Can Challenge a Will in NSW?

Not everyone can challenge a will. NSW law defines specific categories of eligible persons who may bring a family provision claim:

Immediate family members including spouses, de facto partners, and children typically have the strongest standing to challenge a will. Former spouses may also be eligible in certain circumstances, particularly if they were receiving or entitled to receive maintenance from the deceased.

Extended family and dependents may also have claims in specific situations. This can include grandchildren who were partly dependent on the deceased, members of the deceased’s household who were dependent on them, or persons with whom the deceased was living in a close personal relationship at the time of death.

Each category has different requirements and considerations. The strength of your claim will depend on factors including your financial circumstances, the size of the estate, the needs of other beneficiaries, and the nature of your relationship with the deceased.

Time Limits for Estate Disputes

Acting promptly is crucial when considering an estate dispute. In NSW, family provision claims must generally be filed within 12 months from the date of death. While the court may grant extensions in exceptional circumstances, delayed applications face significant hurdles and may be refused entirely.

This strict timeframe makes early legal advice essential. Even if you’re unsure about proceeding with a claim, understanding your position and options early allows you to make informed decisions within the required timeframes.

Common Grounds for Contesting a Will

Lack of Testamentary Capacity

Questions about mental capacity often arise when a will was made late in life or during illness. To make a valid will, the testator must understand the nature and effect of making a will, the extent of their property, and the claims of those who might expect to benefit.

Medical evidence, witness statements, and documentation about the deceased’s cognitive state become crucial in these cases. Even conditions like dementia don’t automatically invalidate a will, what matters is the person’s capacity at the specific time the will was made.

Undue Influence

Undue influence occurs when someone pressures or manipulates a vulnerable person into making or changing their will against their true wishes. These cases often involve elderly testators who were isolated from family or dependent on the beneficiary who gains disproportionately from the will.

Proving undue influence requires careful examination of the circumstances surrounding the will’s creation, the relationship dynamics, and any suspicious changes that benefit the alleged influencer. For detailed information on what constitutes valid grounds for contesting a will, understanding these legal principles is essential.

Inadequate Provision

Family provision claims focus on whether the will makes adequate provision for eligible persons’ proper maintenance, education, and advancement in life. The court considers various factors including your financial needs, the relationship with the deceased, and competing claims from other beneficiaries.

What constitutes “adequate provision” varies significantly based on individual circumstances. The court takes a holistic view, considering not just immediate financial needs but also future requirements and what a wise and just testator would have done.

The Resolution Process

Initial Assessment and Negotiation

Many estate disputes resolve through negotiation without requiring court proceedings. Early engagement between parties, often through their lawyers, can identify common ground and explore settlement options that preserve both estate value and family relationships.

Our approach prioritises negotiated resolutions where possible, understanding that lengthy court battles can deplete estates and cause lasting family divisions.

Mediation

If initial negotiations don’t succeed, mediation provides a structured environment for resolving will disputes. An independent mediator helps parties explore options and work toward mutually acceptable solutions. Mediation is generally faster and less expensive than court proceedings, and allows families to maintain more control over outcomes.

The confidential nature of mediation also means sensitive family matters remain private, unlike court proceedings which become public record.

Court Proceedings

When other resolution methods fail, court proceedings may be necessary to protect your rights. The Supreme Court of NSW has jurisdiction over estate disputes, with judges experienced in balancing competing claims and family dynamics.

Court proceedings involve several stages including filing applications, exchanging evidence, and potentially attending a final hearing. Throughout this process, settlement remains possible and is often encouraged by the court.

Protecting Estate Assets During Disputes

When disputes arise, protecting estate assets becomes crucial. Executors must carefully balance their duties to all beneficiaries while defending against claims. This may involve:

• Obtaining legal advice before distributing any assets
• Maintaining detailed records of all estate transactions
• Considering whether to seek court directions on complex matters
• Ensuring adequate funds remain for potential claims

For potential claimants, protective measures like caveats can prevent premature estate distribution while disputes are resolved.

The Importance of Expert Legal Guidance

Estate disputes involve complex legal principles, strict procedures, and significant emotional challenges. Professional legal guidance helps you:

• Understand your rights and the strength of your position
• Navigate procedural requirements and time limits
• Gather and present evidence effectively
• Explore resolution options that protect your interests
• Make informed decisions based on realistic assessments

Every situation is unique, requiring careful analysis of the specific circumstances, relationships, and legal considerations involved.

Taking the Next Step

If you’re considering challenging a will or defending an estate against claims, early legal advice is invaluable. Understanding your position, options, and the strength of your case allows you to make informed decisions during an emotionally difficult time.

NSW Wills & Estates Helpline provides compassionate, professional guidance through all aspects of estate disputes. We help you understand the legal landscape, assess your options realistically, and work toward resolutions that protect your interests while minimising family conflict where possible.

Contact our experienced team at 1300 679 222 to discuss your situation in confidence and explore how we can help you navigate this challenging process.