Will Dispute Lawyers Sydney

Empower Wills and Estate Lawyers

No win no fee*

The Leading Will Dispute Lawyer in Sydney, New South Wales

Our lawyers specialise in will and estate disputes in Sydney. Our mission is to assist our clients to claim or protect their interests in an estate through a combination of expert legal advice, representation, and strategy.

Once a general law practice, we are now a fast-growing practice specialising in will and estate disputes, consistently delivering successful results for our clients. Our client satisfaction is evident through our word-of-mouth referrals which are now our largest source of new clients.

With over a decade of experience, our Founder and Director applies a unique combination of expert knowledge as seen in the blog, dedication, and strategy to every stage of a matter with the sole objective of delivering the best results for his clients.

Have Our Will Dispute Lawyers On Your Side

Experts in Our Specialised Area of Law

We are inheritance lawyers who specialise in will and estate disputes and assist clients to claim or protect their interests in an estate through a combination of expert legal advice, representation, and strategy.

High Level of Client Care and Professionalism

We understand that the death of a family member or loved one can bring grief and heightened emotions. We acknowledge that inheritance claims can compound this grief and cause or deepen personal or family conflict. We provide dedicated client care, tailored to each client’s particular circumstances, to support them through the process whilst working together to deliver the best results.

Proven Track Record of Winning Cases

We consistently deliver successful results for our clients. Our client satisfaction is evident through our word of mouth referral channel which is now our largest source of new clients.

No Win, No Fee

In some cases we can offer clients a Conditional Costs Agreement, otherwise referred to as a “no win no fee” agreement. A “no win no fee” agreement means that a client will not have to pay any of our fees unless and until a successful outcome is achieved*.

*Whilst a client subject to a “no win no fee” agreement will not have to pay our fees until and unless they achieve a successful outcome, the client is still liable to pay disbursements and barrister’s fees throughout the course of the matter. Whether we can offer a “no win no fee” agreement will depend on the facts and circumstances of each case.

How Empower Wills and Estate Lawyers Can Help You

We assist clients with all disputes involving wills or deceased estates in Sydney. From those who are seeking to claim a larger share of a friend or family member’s estate, to those looking to protect their share of an estate from a baseless claim brought by another person.

We also assist our clients to challenge or defend the validity of the will itself, where for instance there are suspicious circumstances surrounding the preparation or execution of the will, or questions in relation to the mental health of the will-maker (known as a “testator”) at the time the will was made.

Contesting a Will

In NSW, a person can leave their assets to anyone they choose when they die, in other words, a person has “testamentary freedom”. In some circumstances, however, the law can interfere with the deceased’s testamentary freedom and effectively rewrite the terms of the deceased’s will by altering the distribution of the deceased’s estate. This is referred to as a “family provision order”.

The Succession Act 2006 (NSW) prescribes the requirements that must be satisfied in order to obtain a “family provision order”.

Challenge a Will

To challenge a will means to question the validity of the will itself. There are many grounds on which a will may be brought into question.

Questions may arise where a family member, who takes an unusually large benefit under the will, was present when the deceased gave instructions to their lawyer, or more concerningly, where that family member prepared the will themselves.

Questions often arise in relation to the execution of the will itself or in relation to the deceased’s mental capacity at the time of making their will, otherwise referred to as “testamentary capacity”. As the Australian population life expectancy increases, so do the rates of dementia and Alzheimer’s in the community, and so do questions and claims in relation to testamentary capacity.

The difference between Contesting or Challenging a will in NSW

Generally, a person may contest a will or challenge a will. These are two distinctly different concepts and require a consideration of different factors.

To contest a will typically involves a question of quantum, that is, where a person wants to claim a larger share of an estate or defend a claim by another person. A claim of this nature is known as a “family provision claim”.

On the other hand, to challenge a will typically involves a question of quality, that is, quality of the will itself, including circumstances surrounding its origin, execution, and its meaning (otherwise referred to as its ‘construction’).

Family Provisions Claims

In NSW family provision claims are made under the Succession Act 2006 (NSW). In order to bring a successful family provision claim, the person bringing the claim must establish the following:

they are an “eligible person”; and
in circumstances where the person is: (a) a former spouse of the deceased person, (b) a person who was at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member; or (c) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death – having regard to all the circumstances of the case (whether part or present) there are factors which warrant the making of the application, and
adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased, or both.

Once the claimant has commenced the family provision claim to contest the will, the matter may proceed to a hearing where each party gives evidence to support their case. In reaching its decision, the Court will consider the following:

Your age
Your character
What kind of relationship you had with the deceased
What kind of responsibilities the deceased owe to you
Your personal financial situation at the time of contesting, including any future financial needs
Whether you are financially supported by another person
Whether you have any physical, mental or intellectual conditions
If the deceased provided you with any maintenance or support prior to death
The value and location of any property and other items included in the deceased’s estate
Any contributions you have made in the past which increased the value of the deceased’s estate
Claims that have been made by other people on the estate in question
Any customary law that applies if the deceased was of Aboriginal or Torres Strait Islander descent
Any other matters deemed relevant by the Court

Once all of the above factors have been considered, the Court will make a ruling on the dispute. It is also in these final stages that the cost of contesting a will and the responsibility for payment of those costs is then determined, if the parties have not reached agreement as to costs by this stage.

Testamentary Capacity

For a will to be valid, the person making or changing the will (known as the ‘testator’) must have testamentary capacity at the time of making or changing their will. To have testamentary capacity the testator must have a sound mind, memory, and understanding of what they are doing.

Importantly, testamentary capacity is a legal test and not a medical test. Whilst medical evidence may be helpful to provide a diagnosis of illnesses and a medical chronology, it is not the only evidence that a court will consider when tasked with assessing testamentary capacity. Among the wide range of evidence that a court may consider when determining testamentary capacity include the file notes of the will-drafter lawyer who took instructions and prepared the will (to determine whether they conducted any assessment of testamentary capacity at the time the will was made) and evidence from family members and friends (who are often in the best position to identify and give evidence in relation to any changes in a testator’s cognitive ability or behaviour over time).

Depending on the nature and extent of a disorder, a dispute in relation to testamentary capacity can often be resolved between the parties without the need for court intervention.

If a dispute cannot be resolved outside of court, one party will typically bring into issue the question of testamentary capacity. Once a question in relation to testamentary capacity is raised, the onus will be on the propounder of the will (typically the executor) to affirmatively prove that the testator had testamentary capacity.

To prove that a testator had testamentary capacity to make a valid will a person must show that the testator understood the consequences of creating a will at the time of its creation. The law is clear on this point and the courts have repeatedly referred to the 1870 case of Banks v Goodfellow (1870) LR 5 QB 549. The authority states that the will maker must understand what he or she is doing. It is essential that the will maker:

understands the nature of the act of will making and its effects;
understands the extent of the property of which he or she is disposing in the document;
is be able to comprehend and appreciate the claims to which he or she ought to give effect; and with a view to that object;
that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

If the court is not satisfied that the testator had testamentary capacity in respect of a particular will, the court may “pass over” that will and grant probate for an earlier valid will, or if there is no earlier valid will, determine that the testator died without a valid will (referred to as dying “intestate”) and grant letters of administration to the estate’s administrator or legal representative.

Undue Influence Or Fraud

The concepts of undue influence and fraud are distinctly different concepts under succession law.

The concept of undue influence relates to circumstances where a person makes a will against their wishes, in other words, a will made under “coercion”. A will is made under coercion if the will that was created was not the will that the person would have made if the coercion had not existed. Coercion may arise where one child has placed considerable pressure (either verbal or through conduct and/or actions) on their parent so as to coerce the parent into leaving them a larger share of the estate. The fact that the parent acquiesces and eventually agrees to make the will in those terms, does not cure the preceding undue influence. The onus of proving undue Influence is on the person alleging it and it is often very difficult to establish. A person who alleges undue influence may also face significant cost consequences if they unsuccessfully assert undue influence.

Fraud on the other hand is more egregious and typically involves the creation of a will that is based on misleading or false facts or circumstances.

Suspicious Circumstances

Suspicious circumstances are circumstances that cast doubt over the testator’s “knowledge and approval” of the contents of their will.

Once suspicious circumstances are raised, the person propounding the deceased’s last will (typically the executor) must affirmatively prove that the testator “knew and approved” of the contents of the will.

When considering whether suspicious circumstances exist, a court will look at a number of factors including but not limited to the circumstances surrounding the preparation of the will; whether the beneficiary was instrumental in the preparation of the will; the extent of any physical or mental impairment, if any, of the testator; whether the will in question constitutes a significant change from a prior will; and whether the will, generally, seems to make testamentary sense.

If Any of These Situations Apply To You, Then We Can Help

You’ve been left out of a will

The will appears suspicious

You’ve not been properly compensated for

The will changed under duress

The will does not reflect the deceased true intentions

Any other reasons to dispute the will

Get Expert Legal Advice from a Sydney Lawyer Now

Step 1

Start the process by contacting the experts at Empower Wills and Estate Lawyers by calling us on 1300 414 844.

Step 2

We engage with you by scheduling an initial consultation with one of our inheritance lawyers. This is an opportunity to tell us about your legal issue and your objectives. Our lawyers will ask a range of questions to obtain a detailed understanding of the matter to determine whether we can assist. If we can assist we will provide an estimate of costs and issue a Costs Agreement and our Terms and Conditions.

Step 3

We send you a Costs Agreement. If you would like to retain us as your inheritance lawyers, by printing, signing and returning a copy of the Costs Agreement.

Step 4

We negotiate - This is the first stage where we engage other parties on a formal basis. This may include writing to another party to make a settlement offer or to respond to a settlement offer.

Step 5

We litigate - If the dispute is not able to be resolved through negotiations or mediation we can provide you with firm and fearless legal representation and dedicate ourselves to securing you the best possible outcome.

Need Expert Advice From a Sydney Based Wills Lawyers?

If you have an inheritance issue and want an expert to protect your interests contact Empower Wills and Estate Lawyers in Sydney now.

You can contact the experts at Empower Wills and Estate Lawyers by calling us on 1300 414 844.

We offer flexible fee structures tailored to our clients circumstances and in some circumstances offer “no win no fee” agreements.

What Our Clients Have to Say About Working With Us

The testimonials include testimonials received in respect of all practice areas.

Frequently Asked Questions

What is the difference between challenging and contesting a will?

Generally, a person may contest a will or challenge a will. These are two distinctly different concepts and requires a consideration of different factors.

Is there a time limit for contesting a will in NSW?

In NSW, a family provision claim must be commenced within 12 months from the date of the deceased’s death, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time.

Will I have to go to court if I contest a will?

If the dispute can be resolved through negotiations and mediation the parties may be able to reach a resolution and settle the matter outside of court. This may obviate the need for court proceedings. Whether a dispute can be resolved without court intervention will depend on the facts and circumstances of the case and factors including each party’s willingness to reach agreement.

In other cases, the facts and circumstances are such that the matter may need to proceed to court. In these cases, you should seek legal advice before commencing proceedings. In some circumstances, including where you commence court proceedings and are ultimately unsuccessful, or where you unreasonably refuse another party’s offer to settle, the court may order that you pay one (or more) of the other parties’ costs. Costs in will disputes can be significant and can often exceed $150,000 or more.

What is compulsory mediation?

Mediation is an alternative dispute resolution process whereby the parties meet with an independent, impartial and neutral third party mediator who assists the parties with the negotiations and helps facilitate settlement of the issues. It is recommend that each party be legally represented at mediation. If an agreement is reached, the parties may or may not require further involvement of the court, depending on the terms of the settlement. If the mediation is unsuccessful, the matter would typically continue in court.

Can a will be contested without a lawyer?

Whilst there is no requirement for you to be legally represented in a will or estate dispute, we recommend that you engage a solicitor who specialises in will and estate disputes for reasons including:

1. Succession law is a highly complex area of law. On the one hand succession law dates back hundreds of years, but on the other hand court judgements are published daily which often change the court’s interpretation and application of the law in our ever-changing society.

2. You may make statements (oral or written) or agree to something that is prejudicial or not in your best interests. Only an experienced will and estate lawyer will be best placed to advise you on what is in your best interests.

3. The court’s practice and procedures are complicated and in some cases overwhelming. An experienced will and estate lawyer will be able to navigate the court process.

Can a non-eligible person contest a will in NSW?

When it comes to contesting a will, only an “eligible person” can make a claim for a family provision order. The definition of “eligible person” is defined in Section 57 of the Succession Act 2006 (NSW).

However, the categories of people who may be able to challenge a will on grounds including testamentary capacity, undue influence, or suspicious circumstances is, generally speaking, prescribed by the Probate and Administration Act 1898 (NSW).

What invalidates a will in NSW?

There are a range of factors that may impact the “actual” or “essential” validity of a will.

The “actual validity” of a will may come into question where for instance the will has not been prepared in the form prescribed by, or has not been executed in accordance with, the Succession Act 2006 (NSW).

The “essential validity” of a will may come into question where the testator did not have testamentary capacity at the time of providing instructions to his or her lawyer who prepared the will, or where there was undue influence or suspicious circumstances.

Can I stop someone from contesting or disputing a will?

The best thing to do is to seek advice from a lawyer who specialises in will and estate disputes as early as possible.

At the early stages of a matter, an experienced lawyer can utilise firm and strategic correspondence to reduce the likelihood of the matter escalating. An experienced lawyer can also ensure that your matter is fully prepared and that the evidence supports your position. A strong position supported by strong evidence is the best thing you can do to deter and defend claims.

What happens if the deceased did not leave a will?

Where a person dies without a will or without a valid will, the person is said to have died “intestate”.

In NSW, if a person dies intestate, the deceased’s estate will be distributed in accordance with the laws of intestacy which are found in Chapter 4 of the Succession Act 2006 (NSW). The order of distribution is often complicated and a lawyer may be required to conduct enquiries with government agencies or other people, before the order of distribution can be confirmed.

Do you need to live in the same state as the person who’s will you are disputing or challenging?

The Succession Act 2006 (NSW) does not require a claimant to reside in the same state as the person who’s will you are contesting or challenging. Instead, the eligibility requirements relate primarily to the relationship between the claimant and the deceased, rather than the geographical location of the claimant. Though there can be cross-jurisdictional issues in relation to the assets themselves which often require further consideration.