Contesting Wills

Are you considering launching a challenge to a loved one’s will in New South Wales? Contesting a will, or challenging its validity, may make you feel intimidated, but in our experience as will dispute lawyers at NSW Wills & Estate Disputes Helpline, we can support and guide you through each step. We have a long history of settling disputes in NSW and Australia. In many cases where beneficiaries felt the will was not valid, they were not adequately provided for, or were left out of a will in NSW altogether, matters were successfully settled out of court.

Contesting a Will in NSW

If you are an eligible person and have not been adequately included in the distribution of the deceased estate, or believe the will is invalid, you can contest a will in NSW. There are strict time frames for contesting a will in this state, so you should seek legal advice for contesting a will in NSW as soon as possible.

Exceptions can apply to bringing a claim outside of the known time frames. Usually, eligible people have 12 months from the date of the deceased’s death to make a Family Provision Claim in NSW. The court takes into account various factors when deciding whether to make a family provision order.

Who Can Contest a Will in NSW?

A person can challenge the validity of a will if they are:

A beneficiary named in the current will or one named in a previous will made by the deceased.
Anyone who would be entitled to benefit from the estate had the person died intestate (without making a valid will).

Be aware of the time limits (often referred to as the statute of limitations) on contesting a will. If you need to talk to expert lawyers about who can contest a will in NSW or your specific situation, call us today at the NSW Wills & Estate Disputes Helpline on 1300 679 222.

The Family Provision Act

A person can contest a will in NSW by making a family provision claim. This type of claim is made under the Succession Act 2006 (NSW), which incorporates provisions that protect those who have an entitlement to benefit from a will but have been either left out of a will in NSW or not properly provided for. The Succession Amendment (Family Provision Act) 2008 was an important update to this area of law. Similar laws exist across other states and territories.

Who is Eligible to Make a Family Provision Claim?

Anyone listed as an “eligible person” under Section 57 of the Succession Act 2006 (NSW) can make a family provision claim in NSW. If you’re not sure whether you are classed as an eligible person, contact our team of expert family provision and will dispute lawyers. Family provision claims can generally only be made by the following “eligible persons”:

The husband or wife of the deceased (at the time of death).
A person with whom the deceased was living in a de facto relationship at the time of death (which includes same-sex relationships).
A child of the deceased (including an adopted child).
A former husband or wife of the deceased.
A person who was, at any particular time, dependent (wholly or partly) on the deceased, AND who is a grandchild of the deceased or was, at that particular time or any other time, a member of the deceased’s household. A person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.

While other relatives like siblings or parents are not automatically listed as eligible persons, they could be considered eligible if they were a member of the deceased’s household or wholly or partly dependent on the deceased at some point, and other specific factors are met. Step-children may also be eligible under certain dependency conditions. It’s best to seek specific advice.

Understanding Family Provision Claims

Family Provision Claims are typically made when an eligible person believes they have not received adequate provision from the deceased’s estate through the will (or under intestacy rules if there’s no will), even if the will itself is otherwise valid. Such claims are made to the Supreme Court of New South Wales seeking a larger share or provision from the deceased estate.

Court Proceedings and Investigations For Family Provision Claims

After submitting your family provision claim, the courts will investigate many factors. These include any contributions you made to the deceased’s estate or welfare, any responsibilities or obligations the deceased person may have owed you, your financial needs and resources, the size of the deceased estate, and the needs of other beneficiaries. Then a ruling will be made on the merits of your claim. Courts will also look into your current and historical financial circumstances and your relationship with the deceased.

What Are the Grounds For Contesting a Will in NSW?

Wills are typically contested or challenged in NSW on the following main grounds for contesting a will:

Challenging the Validity of the Will:

The will of the deceased may not be legally valid due to reasons such as:

Lack of Testamentary Capacity: The will-maker did not have the mental capacity to understand they were making a will or its implications.
Undue Influence: The will-maker was coerced or pressured by another party.
Fraud or Forgery: The will was created deceitfully, or the signature was forged.
Suspicious Circumstances: Circumstances surrounding the will’s preparation or execution raise serious doubts.
Failure to meet formal requirements: The will was not properly signed or witnessed.

Making a Family Provision Claim (Inadequate Provision):

In deciding whether a will is legally valid (the first ground above), the courts will seek answers to these questions:

Is this will the last will and testament made by the will-maker?
Was the will made concerning all legal requirements? For instance, was the will documented, signed by the deceased and witnessed by two persons not named in the will as beneficiaries?
Was the will-maker of sound mind with the mental capacity (i.e., did they have testamentary capacity) at the time of signing and able to understand the implications of their will?
Has the will been changed in any way since the document was signed (e.g., unauthorised alterations)?
Was any undue influence involved when the document was drawn up and signed by the will-maker?

Call the NSW Wills & Estate Disputes Helpline

Our team of experienced lawyers has a wealth of expertise and knowledge in all aspects of will disputes and estate litigation. We offer the guidance and representation you need to achieve a fair result. Contact us today at 1300 679 222 for legal advice on contesting a will in NSW.

Call Us Now For A

Free Consultation

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.