Will Disputes

The death of a family member or friend is an emotionally challenging time. Dealing with disagreements over their will or estate can add significant stress. At the NSW Wills & Disputes Helpline, our specialist lawyers understand the complexities involved in will disputes.

A will dispute arises when there is a conflict concerning a deceased person’s will or how their assets are distributed. In New South Wales, these disputes generally fall into two main categories:

Challenges to the Will’s Validity: Questioning whether the will itself is legally sound. Learn more about Contested Wills & Challenges.
Family Provision Claims: Seeking adequate financial provision from the estate for an eligible person who believes they were unfairly left out or inadequately provided for. Explore Family Provision Claims.

Navigating these issues requires understanding your rights, the legal grounds for a dispute, strict time limits, and the processes involved.

Understanding the Types of Will Disputes in NSW

Will disputes can stem from various concerns regarding the will document itself or the distribution outlined within it. Here’s a brief overview:

Challenging the Validity of a Will

This type of dispute questions whether the will document legally reflects the deceased’s intentions and meets legal requirements. Common grounds include:

Lack of Testamentary Capacity: The deceased wasn’t of sound mind when making the will.
Undue Influence: The deceased was pressured or coerced.
Improper Execution: The will wasn’t signed or witnessed correctly under NSW law.
Fraud or Forgery: The will was created deceptively, or the signature is fake.
Suspicious Circumstances / Lack of Knowledge & Approval: Doubts exist whether the deceased knew and approved the will’s contents.

For a detailed explanation of these grounds, see our page on what are the grounds for contesting a will.

Family Provision Claims (Seeking Adequate Provision)

Even if a will is legally valid, certain people closely connected to the deceased can ask the Court for a share (or a larger share) of the estate if they believe the will didn’t make adequate provision for their proper maintenance, education, or advancement in life. This is known as a Family Provision Claim.

Eligibility is strictly defined by law. Find out who can make a claim and the process involved.

Other Estate Disputes

Conflicts can also arise over how the estate is being managed by the executor or trustee, or specific disagreements within families regarding inheritance.

Learn about broader Estate Disputes & Litigation.
Explore issues common in Family Will Disputes.

Who Can Initiate a Will Dispute?

The right to start a dispute depends on the type of challenge:

Validity Challenges: Generally, anyone who would benefit financially if the will were declared invalid (e.g., a beneficiary under a previous will or someone entitled under intestacy rules) may have standing.
Family Provision Claims: Only specific “eligible persons” as defined in the NSW Succession Act 2006 can apply. This typically includes spouses, children, and dependents.

Overview of the Will Dispute Process

While the exact steps vary, contesting a will generally involves:

Seeking Legal Advice: Understanding your position, potential claim, and time limits.
Notifying the Executor: Informing the person managing the estate of your intended claim.
Gathering Evidence: Collecting documents and information to support your case.
Negotiation/Mediation: Attempting to resolve the dispute out of court (often a required step). You can read more about resolving will disputes through mediation.
Commencing Court Proceedings: Filing documents with the Supreme Court of NSW if no settlement is reached. Details on how to contest a will – the process.

Most disputes are resolved through negotiation or mediation before a final court hearing.

Critical Time Limits For Will Disputes in NSW

Strict time limits apply, and missing them can mean losing your right to claim.

Family Provision Claims: You MUST file your application with the Court within 12 months from the date of the deceased’s death.
Validity Challenges: While longer periods may theoretically exist for some validity claims (like fraud), practical steps (like lodging a caveat to prevent probate) often need to be taken very quickly, usually before a Grant of Probate is issued by probate lawyers.

Extensions of time are sometimes possible but are not guaranteed and require specific circumstances. It is crucial to seek legal advice as soon as possible.

Costs Involved in Will Disputes

Legal costs are an important consideration. In some cases, particularly successful Family Provision Claims where a claim was reasonably made, the court may order legal costs to be paid from the estate assets. However, this is not automatic and depends on the case specifics. Unsuccessful claimants may risk having to pay their own costs and potentially some of the estate’s costs. We may be able to assist as No Win No Fee Will Dispute Solicitors.

We offer a free initial consultation to discuss the potential merits of your case and provide information about legal costs.

How the NSW Wills & Estates Helpline Can Assist

If you’re facing a potential will dispute in NSW, our experienced lawyers can help. We provide clear advice and representation across all types of estate litigation. We can help you:

Understand your rights and eligibility.
Assess the strengths and weaknesses of a potential claim.
Navigate the complex legal process.
Gather necessary evidence.
Represent you in negotiations, mediation, and court proceedings if required.
Strive for a fair and efficient resolution.

Our team, based in Sydney, assists clients throughout NSW. Find expert will dispute lawyers here.

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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.