Estate Disputes

The law in Australia, and specifically in New South Wales, recognises that occasionally estate disputes arise when people who would expect to benefit from a will have been inadequately provided for or have been left out entirely. If this is you, and you believe you have been treated unfairly either in an estate dispute or in the terms of a will in New South Wales, you could be eligible to make a claim on the deceased estate. Understanding your rights under NSW law is the first step.

Making an Estate Claim on an Unfair Will

If you are eligible under NSW law, you can contest, challenge or dispute a will to achieve an estate dispute resolution if you have been left out or received an unfair portion of the estate in the will. To make an estate claim on a seemingly biased or unfair will in NSW, you need to be classed as an eligible person. This broadly involves two main avenues: you might contest the amount of money the deceased has left you (often through a Family Provision Claim if you haven’t been adequately provided for). Or you might challenge the validity of the will itself if there are grounds to believe it’s not legally sound. This way, you may receive your fair share of the deceased’s assets.

Reasons to Make an Estate Claim or Dispute

Making an estate claim from a will where you feel you have not been adequately provided for (a Family Provision Claim) revolves around many factors. These include the kind of relationship you had with the testator (the deceased, or will-maker), your financial needs and circumstances, the size of the estate, and the testator’s state of mind when they made the will. Other grounds include whether grounds for challenging the will’s validity, such as lack of testamentary capacity, undue influence, fraud or coercion, were involved in the creation of the will.

Contact your estate dispute solicitors via our NSW Wills & Estates Helpline as soon as possible after the will is read, since there are strict time limits in which to lodge estate claims in NSW. Delaying can jeopardise your ability to make a claim. Mediation in estate disputes is common, and estate disputes are usually resolved at mediation before turning up at the NSW Supreme Court.

The Family Provision Act

A person can dispute an estate or contest a will in NSW by making a claim under the principles of family provision, primarily governed by the Succession Act 2006 (NSW). This legislation allows anyone who is deemed an “eligible person” (see ‘Who Can Dispute an Estate’ below) to make a family provision claim. It protects those who should rightfully benefit from a will but have either been left out or have not received adequate provision for their proper maintenance, education, or advancement in life. In NSW, claims in respect of family provision are made under the Succession Amendment (Family Provision) Act 2008 amendment of the Succession Act 2006 to address family provision orders, with similar laws across other Australian states and territories, though the specific rules and eligibility criteria for NSW apply here.

Disputes About the Validity of Wills or Entitlements

There are times when disappointed beneficiaries or others, including the executor of a person’s will, challenge the validity of the will in a court of law. The circumstances in which these situations may occur can include:

The testator revoked the will in their lifetime.
The will failed to be executed correctly under Part 2.1 of the Succession Act 2006 (NSW). This means it wasn’t signed or witnessed according to the strict legal requirements in NSW.
When two or more conflicting wills are made around the same date.
The testator lacked approval or knowledge of the will’s contents.
When it’s a suspicious will and there is reason to believe the testator did not make it or sign it themselves, i.e. fraud is involved.
The will is fraudulent or is a forgery, or was created under undue pressure (also known as undue influence).

When doubt is felt about the testator’s mental capacity (testamentary capacity) to make the will that is being disputed, or there was undue influence on the will-maker.

Testamentary Capacity, Fraud, and Undue Influence Explained

An example of a will-maker’s lack of testamentary capacity would be if they were suffering from a mental illness or condition such as dementia or Alzheimer’s Disease at the very time the will was made that impaired their understanding of the act of making a will and its effects. It also includes taking medication that would have substantially affected the testator’s judgment when making the will.

A will that is made with undue influence is when a person was improperly pressured, manipulated, or coerced into making the will (or parts of it) such that it does not reflect their true wishes. Also, that they were subjected to pressure or duress, or given their age or health, was placed under a perceived obligation to make the will in a way they may not otherwise have made it. And fraud may be involved if there was a failure to comply with the formal legal requirements necessary when drawing up a will, or if the signature or the will itself is a forgery.

Who Can Dispute an Estate or Contest an Unfair Will?

The following people are generally considered by the NSW courts as “eligible persons” who can claim a “family provision order” on the estate of the deceased under the Succession Act 2006 (NSW). This may include:

Someone who was the spouse of the deceased person at the time of the deceased person’s death.
Someone who lived in a de facto relationship with the will-maker at the time of the deceased’s death.
A child of the deceased person, whether born in a marriage, a de facto relationship or adopted.
A former spouse of the deceased person.
A grandchild of the deceased person who was at any time wholly or partly dependent on the deceased person and was a member of the household in which the deceased person lived, or was a member of the household of which the deceased person was a member.

Anyone who, at any time, was wholly or partly dependent on the deceased person and was a member of the deceased person’s household or was living in a close personal relationship with the deceased person when the deceased person died.

Call the Wills & Disputes Helpline

If you’re involved in an estate dispute and need expert help in New South Wales, whether you’re an executor, beneficiary, or have been left out, call an estate dispute resolution lawyer through our dedicated helpline. At the Wills & Disputes Helpline, we can assist you with a wide range of wills and estate challenges, including:

Challenges to the validity of a will based on grounds like lack of capacity or undue influence.
Challenging contested wills on the grounds of undue influence or a lack of testamentary or mental capacity.
Estate disputes involving the appointment or conduct of executors.
Disputes over a will’s intention or the interpretation of the will.
Disputes over asset distribution.
Family Provision Claims for insufficient provisions or lack of provisions to beneficiaries.

Our team of experienced specialist estate lawyers has a wealth of expertise and knowledge in all aspects of family provision claims and estate litigation disputes within NSW. We offer the right advice, guidance and representation you need to achieve a fair result, either in court, mediation or out-of-court settlements. We understand this is a difficult and sensitive time, and we offer clear, compassionate legal support. If you are searching for ‘estate dispute lawyers near me’ in Sydney or greater NSW, contact our estate disputes Sydney office today at 1300 679 222.

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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.