Contesting Wills in NSW

When someone believes they have not received a proper provision in a will, they may decide to make a family provision claim. Contesting a will can be challenging. Only certain people can apply, and there are strict grounds for eligibility.

Find out more about contesting a will in New South Wales, who is eligible, the legal grounds and time limits that apply, and what steps to take.

Let’s take a closer look.

What Is Contesting A Will?

There are several reasons why a person may wish to contest a will. 

When a person contests a will, they legally object to the documents contents, and disagree with the distribution of the estate. Also, an eligible person, such as a dependant, may claim they have not received adequate provision as a beneficiary. 

These matters may be resolved, through private negotiation with the executor or formal mediation sessions. But sometimes, it may be necessary to commence court proceedings, which may include lodging a family provision claim, where the Supreme Court will determine whether a person has not received their entitlements.

Contesting a will can be challenging, as there are no guarantees of a positive outcome, and a lengthy court battle can be expensive. The claimant should always consider settling the matter out of court through mediation. 

What Are Family Provision Claims?

In NSW, when a person believes they do not have adequate provision and contest a will, it is known as a family provision claim. The claimant must prove that there is inadequate provision and that they are in financial need. The provision may be used for their advancement, education or maintenance. 

The legislation contained in the Succession Act, titled family provision, ensures that family members or dependents are protected when they need further provision in a deceased’s will. 

When Can A Will Be Challenged In NSW?

When an eligible person believes they are left out of a will or not adequately provided for, they can contest the will.

The Succession Act states the specific legal grounds to claim against an estate. The claimant must demonstrate that the will is unjust and that they have a genuine need. Only an eligible person can make a claim.

Financial Need

The claimant must prove that the will does not provide a share of the estate to meet their support and maintenance requirements. The deceased has a moral obligation to meet their financial needs, which are inconsistent with the current provisions. The claimant may be a dependant or maintained by the deceased, and subsequently their need is greater than other beneficiaries named in the will. Dividing an estate equally amongst beneficiaries is not always the same as fair, and a testator should draft their will, understanding the specific needs of each beneficiary.

Relationship

The court must receive evidence that a supportive relationship existed between the will maker and the applicant prior to their death. The deceased was responsible for the claimant or had previously intended to provide them with a larger share of the estate.

Circumstances

There are several circumstances that the court will consider, such as the claimant’s future earning capacity, current costs of living, age, character, general conduct, financial resources, and financial circumstances of people living with the claimant. The court will also consider any physical or mental disabilities and their capacity to earn an income. 

What Makes A Will Invalid?

A person can challenge a will if they believe it is invalid. If there is evidence that the document has been tampered with, or if there is a more recent will, the estate may be challenged.

Several grounds will render a will invalid, such as the following:

Testamentary Capacity

When a person lacks the mental capacity to comprehend the implications and significance of their will when created, it is invalid. A person must understand what it means to make a will, including family obligations and the extent of their assets. If the testator’s mental capacity is affected by a disorder or delusion, which would alter the structure of their will, it is invalid as they do not have testamentary capacity.

Tests for the mental capacity of the will maker are available if doubts exist.

Fraud

There are several circumstances which may deem a will fraudulent, such as the following:

• The testator was not the person who signed the will
• The original will was hidden or destroyed
• A beneficiary received an unlawful financial gain
• The will was a forgery made by someone else 

Undue Influence

When a person who made the will was influenced or coerced to make a decision, either by a physical or verbal threat, a court may declare the will invalid. The court must receive adequate proof that a person experienced undue influence, not only persuasion, whilst making their will.

Testator Disapproved

When a testator creates a will they must know and approve of the contents. A will can be deemed invalid if the person did not approve of the contents within their will, or know what was in the document.

Who Can Contest A Will?

Only eligible people are permitted to contest a will, and not every beneficiary is eligible, only certain family members or dependants. The rules vary from state to state, but generally, they must be one of the following:

• A spouse, former partner, including DeFacto partners
• A child or stepchild
• A member of the deceased’s household including, grandchildren
• A named beneficiary in the current or previous will
• A person entitled to the estate if there was no will
• A person who was dependent, either wholly or partly, such as a member of the household
• A person who was in a close personal relationship with the deceased before their death 

How Much Does It Cost To Contest A Will?

The cost of contesting a will can vary depending on the circumstances of the claim. In most cases, the Supreme Court makes the decision or parties can agree via a court-ordered mediation process. The costs may be paid from the deceased estate, the losing party or the court may award indemnity to the successful claimant.

Is There A Time Limit When Contesting A Will In NSW?

When contesting a will in Australia, strict time limits apply. It can vary depending on which state or territory the claim is lodged. In New South Wales, for example, a claim must be lodged within 12 months from the date of death, whereas in Tasmania, a claim must be lodged within three months. 

The court can establish a reasonable date of death if there is any confusion regarding the precise date or time.

In some circumstances, the court may permit a claim against a will after the time limit, such as the claimant was not informed of the death, was out of the country or was unaware of the time limits. 

How Long Does It Take?

Certain circumstances can influence how long it takes to contest a will, such as; the complexity of the case, whether the matter can be settled via negotiation, or if a court hearing is required. An out of court settlement will generally take at least three months to finalise, whereas the court process may take up to two years.

What Is The Process To Contest A Will?

The first step when contesting a will is to determine whether a Grant of Probate has been issued. This can be done by contacting the Supreme Court.

If no probate has been granted, a person can file a probate caveat, to prevent the probate being issued. A will may be contested either before or after probate has been granted.

The claimant must notify the executor of the will advising that they wish to make a claim.

The next step is to reach an agreement with the other party through structured mediation to establish whether the will is valid and remove the caveat. There are several benefits of using mediation to resolve the issues. It is more cost effective, time saving and private, as documents and conversations can remain off the public record.

A formal agreement should be written to confirm the verbal agreement and protect both parties.

If parties can not reach an agreement through negotiation, court proceedings may be required.

The person responsible for defending a will challenge is the executor of the deceased estate, who will file and serve relevant evidence to protect the will’s provisions. Each party will provide evidence to the court to prove the validity or invalidity of the will, and they must file an affidavit. A judge will determine whether the will is valid.

Contesting a will can be a lengthy and costly process, and the applicant may need to obtain advice from a legal professional specialising in estate litigation.

What Factors Will The Court Consider?

The court will consider the size of the deceased’s estate as well as the following:

• The financial situation and earning capacity of the person making the claim
• The financial situation of the other beneficiaries of the deceased estate
• The relationship the claimant had with the deceased person, including contributions to personal welfare, or any joint debts
• The contributions the claimant made to the estate, improvements, conservation or acquisition
• What provisions the claimant has already received
• The character and conduct of the person making the claim

What Is The Difference Between Contesting And Challenging A Will?

When a person contests a will, they legally object to the distribution of the deceased estate and contents of the document. An eligible person, such as a dependant or beneficiary, may not been adequately provided for.

Challenging a will occurs when a person believes the document does not accurately reflect the deceased’s intentions. The claimant challenges the validity and legality of the will, believing that it is fraudulent, forged or created with undue influence. 

Summary

In NSW, when an eligible person believes they have not been provided for and contests a will, it is known as a family provision claim.

There are several reasons why a person may wish to contest a deceased person’s will. 

When a person contests a will, they legally object to the document contents and disagree with the distribution of the estate. An eligible person, such as a dependent, may claim they have not been sufficiently provided for as a beneficiary. The claimant must prove that there is inadequate provision that they have a specific need, such as financial dependency or personal circumstances, and that they had a supportive relationship with the deceased person. The provision may be used for their advancement, education or maintenance.

The Succession Act states the legal grounds required to claim against an estate.

A person can challenge a will if they believe it is invalid. If there is evidence that the will has been tampered with, the testator was subject to undue influence, lacked testamentary capacity, fraudulent or not approved by the will maker.

The cost of contesting a will can vary depending on the circumstances of the claim. In most cases, the Supreme Court makes the decision or parties can agree via a court-ordered 

mediation process.

When contesting a will in Australia, strict time limits apply, and it can vary depending on which state or territory the claim is lodged. In New South Wales, for example, a claim must be lodged within 12 months from the date of death.

Contesting a will can be challenging, as there are no guarantees of a positive outcome, and a lengthy court battle can be expensive. Claimants should try to settle the matter out of court through mediation. 

FAQ

On What Grounds Can A Will Be Contested In NSW?

When a person or family member contests a will, they legally object to the contents of the document, and distribution of the deceased estate. If an eligible person believes they have been left out of a will or not received adequate provision, they can contest the will. In NSW, when a person believes they have not been adequately provided for, and contests the will, it is known as a family provision claim.

The Succession Act contains the legal grounds to claim against an estate. The claimant must demonstrate that the will is unjust, they have a specific need, such as financial dependency or personal circumstances, and they had a supportive relationship with the deceased person. 

What Is The Time Frame For Contesting A Will?

When contesting a will in Australia, strict time limits apply, it can vary depending on which state or territory the claim is lodged. In New South Wales, for example, a claim must be lodged within 12 months from the date of death, whereas in Tasmania, a claim must be lodged within three months.

In some circumstances, the court may permit a will to be contested after the time limit, such as the claimant was not informed of the death, was out of the country or was unaware of the time limits. 

Who Is Eligible To Contest A Will In NSW?

Only eligible people are permitted to contest a will, and the rules vary from state to state, but generally, they must be one of the following:

• A spouse, former partner, including DeFacto
• A child or stepchild
• A member of the deceased’s household including, grandchildren
• A named beneficiary in the current or previous will
• A person entitled to the estate if there was no will
• A person who was dependent, either wholly or partially, such as a member of the household
• A person who was in a close personal relationship with the deceased before their death