Discovering you have been left out of a loved one’s will, or that the provision made for you is less than you expected, can be a distressing experience. The process of disputing a will comes at an already difficult time, but it’s important to know that the law provides clear pathways for these situations. If you believe a will is unfair or invalid, you may have the right to contest it.
This guide is designed to provide clear, comprehensive information on who has the legal standing to contest a will in New South Wales. We will explain the grounds upon which a will can be disputed and outline the steps involved in the process, ensuring you know how to make an informed decision.
Understanding the Difference: Contesting vs. Challenging a Will
In conversations about will disputes, you may hear the terms “contesting” and “challenging” used. While they sound similar, they refer to two distinct legal actions in NSW. Understanding this difference is a crucial first step.
Contesting a Will (A Family Provision Claim)
This is the most common type of will dispute. It occurs when an “eligible person” believes they have not been adequately provided for in the will. In this case, you are not arguing that the will is invalid, but rather that the distribution of assets is unfair given your relationship to the deceased and your financial circumstances. The court is asked to make a “family provision order” to award a share, or a larger share, of the estate to the claimant.
Challenging the Validity of a Will
This is a more fundamental dispute that questions the legal integrity of the will itself. Here, the argument is that the will should be declared void and set aside entirely. If a challenge is successful, the court will typically revert to a previous, valid will. If no such will exists, the estate will be distributed according to the laws of intestacy.
Who is an “Eligible Person” For a Family Provision Claim in NSW?
To contest a will by making a Family Provision Claim, you must first have “legal standing.” Under the Succession Act 2006 (NSW), this standing is granted to individuals who are formally recognised as an “eligible person.” Simply being a relative is not always enough; the law defines specific categories of eligibility.
The following individuals are considered “eligible persons” in New South Wales:
- Spouse or De Facto Partner: This includes the person who was married to or in a de facto relationship with the deceased at the time of their death.
- A Child of the Deceased: This includes biological and legally adopted children, regardless of their age.
- A Former Spouse: A person who was previously married to the deceased.
- A person who was, at any point, wholly or partly dependent on the deceased, AND who is a grandchild of the deceased or was a member of the deceased’s household.
- A person who was living with the deceased in a “close personal relationship” at the time of the deceased’s death. This category acknowledges the diverse nature of modern family structures and relationships.
If you fall into one of these categories, you have the right to apply to the Supreme Court of NSW for a Family Provision Order.
What are the Grounds For Disputing a Will?
A will can be disputed for several reasons, which fall into the two broad categories of contesting for provision or challenging for validity. It is vital to identify the correct legal basis for your claim.
Grounds For a Family Provision Claim (Contesting a Will)
The central ground for a Family Provision Claim is that adequate provision has not been made for the proper maintenance, education, or advancement in life of an eligible person.
When considering such a claim, the court does not simply rewrite the will to be “fairer.” Instead, it undertakes a careful two-stage process:
- It determines whether the provision made for the claimant (if any) was inadequate for their proper maintenance and support.
- If the provision is found to be inadequate, the court then decides what provision ought to be made.
The court will consider a wide range of factors, including:
- The nature and length of the relationship between the claimant and the deceased.
- The financial resources, earning capacity, and financial needs of the claimant, now and in the future.
- The size and nature of the deceased’s estate.
- The financial circumstances of any other beneficiaries.
- Any contributions (financial or otherwise) made by the claimant to the deceased’s property or welfare.
- The character and conduct of the claimant.
Grounds For Challenging the Validity of a Will
If you believe the will document itself is not legally sound, you may challenge its validity on one of the following grounds:
- Lack of Testamentary Capacity: The person who made the will (the testator) must have been of sound mind, memory, and understanding at the time of signing. A challenge can be made if it is believed they were suffering from a medical condition or cognitive decline that prevented them from understanding the nature of the will, the extent of their property, or who they ought to provide for.
- Undue Influence or Coercion: This occurs when the testator was pressured, manipulated, or forced by another person into making or changing their will against their wishes. The influence must have been so significant that it overpowered the testator’s free will.
- Fraud or Forgery: A will can be challenged if it is believed to be a fraudulent document or if the testator’s signature was forged.
- The Will is Not the Last Valid Will: If a more recent, legally valid will is discovered, it will supersede any earlier versions.
The Process of Contesting a Will in NSW: A Step-by-Step Overview
Navigating a will dispute can feel overwhelming, but the process follows a structured legal path.
Seek Specialist Legal Advice
The first and most important step is to consult a lawyer who specialises in wills and estate disputes. They can provide a realistic assessment of your claim’s strengths, explain your rights, and guide you through the complexities of the legal process.
Adhere to the Strict Time Limit In New South Wales
There is a strict time limit for commencing a Family Provision Claim in NSW. You must file your application with the court within 12 months of the date of the deceased’s death. While the court has the power to grant an extension in certain circumstances, this is not guaranteed. It is crucial to act promptly to ensure you do not lose your right to make a claim. For challenges to a will’s validity, it is best to act before a Grant of Probate is issued.
Negotiation and Mediation
The vast majority of will disputes in NSW are resolved without a final court hearing. Your lawyer will typically engage with the executor and other beneficiaries to try to reach a settlement through negotiation. If this is unsuccessful, the matter will usually proceed to a formal mediation, where an independent mediator helps all parties work towards a mutually agreeable resolution.
Commencing Court Proceedings
If a resolution cannot be reached through negotiation or mediation, the final step is to file a summons in the Supreme Court of NSW. This initiates formal legal proceedings where both sides will present evidence and arguments before a judge, who will then make a binding decision.
Contact the NSW Wills & Estate Disputes Helpline
Dealing with the loss of a loved one is difficult enough without the added stress of a dispute over their will. If you are concerned about a will, believe you have been unfairly treated, or need to defend a will against a claim, it is vital to have experienced legal professionals on your side.
Our lawyers are experts in the Succession Act and have extensive experience in all aspects of will disputes. We can provide the clear, supportive, and professional advice you need to navigate this challenging time.
Don’t hesitate to seek the guidance you need. Call us today at 1300 679 222, email willscontesting@gmail.com, or fill in our online enquiry form, and we will get back to you immediately.
