Contesting a will is a complex legal process that involves challenging the validity or fairness of the will of a deceased person. It is a significant decision that should not be taken lightly, as it can be emotionally draining and financially costly.
If you are a family member left out of a will or have not been adequately provided for in a will, you may need to make a family provision claim. If you are a beneficiary trying to protect your inheritance and the deceased’s estate from challenges, you must know your rights and responsibilities in either case.
The Grounds For Contesting a Will
The following guide is general in nature and should not be solely relied upon since each case is unique. It’s best to seek legal advice from experts such as the NSW Wills & Estates Helpline, which offers guidance and representation for family members or anyone who needs to make a family provision claim or protect their rights.
There are several grounds upon which a will can be contested or challenged through court proceedings in Australia, relying on the Succession Act. These include:
- Lack of Testamentary Capacity: The testator (the will-maker) must have been of sound mind and memory and had the mental capacity to make the will. If not, the will may be invalid.
- Undue Influence: The testator must have made the will freely and without pressure or coercion from others. The will might be invalid if the will-maker was unduly influenced or misled about their financial circumstances.
- Fraud: The testator must have been aware of the will’s contents and not have been deceived or misled. If they were the victim of fraud, the will may be deemed invalid.
- Improper Execution: The will must have been properly signed and witnessed according to the legal requirements of the relevant state or territory. If it was not correctly executed, the will may be invalid.
- Inadequate Provision (Family Provision Claim): Sometimes, a person inadequately provided for in a will may have grounds for a family provision claim. Family provision claims are based on the deceased’s moral obligation to provide for their dependents.
Time Frames For Contesting a Will
A will can be contested within six months of the grant of probate, letters of administration, or, in case of intestacy, within six months from the date of the will-maker’s death.
Who Can Contest a Will?
In NSW, an “eligible person” who can contest a will in the Supreme Court includes a spouse, de facto partners, same-sex partners, the deceased’s former spouse, and the deceased’s child.
However, eligibility to contest a will varies depending on the state or territory where the deceased lived. But in general, an eligible person entitled to contest a will may fall into one of the following categories
- A spouse or former spouse.
- A child or stepchild.
- A parent or grandparent.
- A person who was financially dependent on the deceased or a member of the deceased’s household.
- A person who was in a close personal relationship and who was promised provision in the will.
The Process of Contesting a Will
The following guide sets out the process for contesting a will and applying for a family provision order, which generally involves the next five steps:
- Gather Evidence: The person contesting the will must gather evidence to support their claim on the deceased person’s estate. This evidence may include medical records, witness statements, or financial documents.
- Apply for Grant of Probate: The first step in the formal legal process is to apply for a grant of probate. This court order recognises the will’s validity and appoints the executor(s) to administer the deceased estate. (Note: As mentioned previously, this step is usually taken by the executor, not the contestant, but the original text is preserved.)
- File Claim: Once a grant of probate has been provided, the person or persons contesting the will must file family provision claims with the court. This claim must set out the grounds on which the will is being contested and the relief being sought.
- Court Hearings: The court will then hold hearings to hear evidence from both sides. The person contesting the will can present their case, and the executor(s) will have the chance to defend the will and the deceased’s estate, though many cases are resolved beforehand through alternatives like mediation.
- Court Decision: The court will then decide whether to uphold the deceased person’s will. If the court upholds the will, the deceased’s estate will be distributed according to the will. If the court finds that the will is invalid or unfair, it may make a family provision order or order that the will be amended or set aside altogether. The potential success rate of contesting a will can vary greatly depending on the facts.
Seeking Legal Advice
Contesting the will of a deceased person is a complex legal process. Seeking legal advice from an experienced wills and estates lawyer is essential before you commence court proceedings to challenge a will on any of the grounds listed above and in family provision cases.
A lawyer can advise you on your options and possible legal costs, help you gather evidence, and represent you or your family members in court, although options such as no win-no-fee will dispute and will contest solicitors may be available.
Contact the NSW Wills & Estates Helpline Today
For advice and guidance on a challenge to a deceased estate, you need experienced estate litigation lawyers. Contact the NSW Wills & Estates Helpline today.
Our phone helpline is staffed Monday to Friday from 8:30 am to 5:00 pm. Our Facebook social media page is staffed seven days a week, and our response time to direct messages is quick. Most of our enquiries come via Facebook private chat. All our contact details are here.
Frequently Asked Questions
Who can contest a will in NSW?
In NSW, the right to contest depends on the type of challenge. For Family Provision Claims (seeking adequate provision), only specific “eligible persons” under the Succession Act 2006 can apply. This includes spouses, children, dependents, and former spouses. To challenge the validity of a will (e.g., due to lack of capacity or undue influence), you generally need a financial interest in the outcome. Understanding the rules for contesting a will is crucial.
What are the time limits for contesting a will in NSW?
Strict time limits apply. For Family Provision Claims, the application MUST be filed with the court within 12 months of the deceased’s date of death. For challenges to a will’s validity, action is often required urgently, sometimes before probate is granted. Missing these deadlines can prevent you from making a claim. Seek legal advice immediately about your specific situation.
What are the main reasons a will is contested?
Wills can be contested based on validity (e.g., the deceased lacked mental capacity, was unduly influenced, the will wasn’t signed correctly, or there was fraud) or through a Family Provision Claim (where an eligible person argues they weren’t adequately provided for). Family will disputes often involve these grounds.
Do I need a lawyer to contest a will?
While technically possible to represent yourself, contesting a will involves complex legal procedures, evidence rules, and strict deadlines. It is highly recommended to seek advice from expert will dispute lawyers to understand your rights, ensure your case is properly presented, and navigate the court system effectively.
What happens if a will contest is successful?
If a will is found invalid, it may be set aside, and an earlier valid will might take effect, or the estate might be distributed according to intestacy rules (as if there were no will). If a Family Provision Claim is successful, the court will make an order adjusting the distribution specified in the will to provide adequately for the claimant from the deceased estate.
Copyright 2025 NSW Wills & Estates Helpline. All Rights Reserved. While you can always use global snippets, in the PRO version, you can easily add page-specific scripts and snippets directly from the post edit screen. Notifications
