Legal Framework for Contesting Wills in NSW

Eligibility to Contest a Will

In NSW, only a person who falls within the definition of “eligible person” is entitled to apply to the Court for a family provision order seeking provision from a deceased estate. Eligible persons include the deceased person’s spouse, de facto partner, child, and in some cases, a former spouse, dependent grandchild, dependent former member of the deceased’s household, and an inter-dependent. To be successful, the applicant must satisfy the Court that the deceased’s will (or the intestacy entitlements) failed to provide adequate provision for the applicant’s proper maintenance, education and advancement in life.

Grounds for Contesting the fairness of a Will

Circumstances where a person may consider contesting a Will may include:

• Receiving less than their siblings: Where the deceased’s will has provided for an unequal distribution of the estate among heirs. 
• Receiving less than they believe they need: Regardless of whether a person has received an equal share as others (such as their siblings) they may have a greater need for more.
• Not receiving what was promised: Sometimes a person promises to leave a share of their estate to a person but fails to include the promise in their Will or prepares a new Will to remove the promise.
• Maintained by or dependent on the deceased: If a person was being maintained by the deceased at the date of their death, or party to a family maintenance claim under the Family law Act 1975, and require that ongoing maintenance, they may be able to bring a claim. 
• Deceased failed to make adequate provision for their proper maintenance, education and advancement in life: If adequate provision for the proper maintenance, education and advancement in life of a specific beneficiary has not been made having regard to their station in life. 

Grounds for Challenging the validity of a Will

Circumstances where a person may consider challenging the validity of a Will may include:

• Lack of Testamentary Capacity: Where a disappointed beneficiary believes they can prove that the testator lacked testamentary capacity to understand the nature of making a will and its effects.
• Undue Influence: Where a disappointed beneficiary suspects the deceased may have been coerced or manipulated into making or changing their will. 
• Fraud or Forgery: Where the Will is suspected to be a product of fraud or forgery.

Process of Contesting a Will

The first step to contesting a deceased person’s estate usually involves writing to the executor and relevant beneficiaries, informing them of the claim, providing reasons for the claim, and providing evidence to support the claim. The parties may then attempt to negotiate a resolution. If an agreement can be reached, the parties can formalise the agreement in writing. 

If an agreement cannot be reached through negotiations and mediation, the person seeking further provision may need to commence litigation and seek determination by the Court. In NSW, a family provision claim must be commenced in Court within 12 months from the date of the deceased person’s death unless the Court orders, or the parties consent to, an extension to the deadline. In some other jurisdictions, the deadline commences once probate has been granted and runs from the date of the grant. Claims should also be commenced before the estate assets are distributed. 

Is It Possible to Contest a Will Before the Testator Dies in NSW?

In New South Wales, it is not possible to contest a will before the testator dies. Here are some things you need to know:

Legal Framework

The legal framework for contesting a will only operates after the death of the testator. At the time of death, the executor or a court-appointed administrator will manage the deceased’s estate, including the distribution of assets as per the will or intestacy laws if the person dies without a valid will.

Process After Death

In NSW, a person who intends to contest a will can make a claim before or after a grant of probate or letters of administration. However, a person bringing a family provision claim must file the claim in Court within 12 months of the date of the deceased’s death unless the Court orders, or the parties consent, to an extension of the deadline. 

Legal Costs and Assistance

Legal fees depend largely on the parties willingness to negotiate. If the parties can reach a resolution via negotiations, the fees will be lower than if the dispute required determination by the Court. Other factors which impact fees include the size of the estate, the nature of the assets, the number of claimants, and the complexity of the matter involved. The Court may also order the unsuccessful party to pay all or part of the successful party’s legal costs. The cost of contesting a Will can be significant, particularly if a claim is unsuccessful. 

Notification and Time Limits

It is often beneficial to notify the executor of a claim as soon as possible after legal advice has been sought. The deadline for bringing a claim varies from State to State. If you’re contesting a Will, you should consult with a lawyer to understand the time limits that apply to your matter. Failure to act within the stipulated time frame can result in your claim being dismissed. 

Steps to Take If You Have Concerns About a Will Before Death

If you have concerns about a Will before the testator dies, whilst you can’t formally contest the Will, there are steps you can take to reduce the risk of a dispute in the future.

Communicate Your Concerns

If you have a relationship with the person that allows for open communication, the first step may be to initiate a direct and open conversation with the testator about your concerns regarding the Will. Expressing your concerns openly can allow the testator an opportunity to explain their reasons and give you an opportunity to express your concerns over the reasons. This may result in the testator making adjustments to their will during their lifetime. However, it is important that these conversations are approached with sensitivity and respect for the testator’s wishes. However, this course should only ever be attempted where there is no risk of the testator reducing your share. 

Seek Independent Legal Advice

If you are safely anticipating a larger share than other beneficiaries, if the testator’s will was not prepared by a lawyer, you may encourage the testator to seek independent legal advice to ensure their Will is valid and meets the formal requirements of a Will. An estate lawyer can review the Will, identify any potential issues, suggest necessary changes, and if necessary, prepare a new Will to best ensure validity. However, this option does run the risk that the testator will change their Will to prejudice your share. 

Review and Update Estate Plans

Ensure that the testator’s estate plan is current and fit for purpose. The estate plan includes not only the Will but also powers of attorney, enduring guardianship forms and advance healthcare directives. We recommend reviewing an estate plan at least every 3 years or upon significant life events such as marriages, divorces, births, or deaths, to best ensure it is fit for purpose.

Compliance with Formal Requirements

Make sure the Will complies with the formal requirements of a Will of the relevant jurisdiction.  In NSW, the Will should be signed in the presence of two witnesses who are not beneficiaries (or spouses of beneficiaries). Formal execution is crucial to reduce the risk of future claims based on a lack of compliance with the formal requirements of a Will. 

Assess the Testator’s Capacity

If there are concerns about the testator’s mental capacity, consider arranging a testamentary capacity assessment in accordance with the test in Banks v Goodfellow. A detailed and well documented assessment of the testator’s cognitive function at the time of making the Will, can reduce the risk of a person challenging the Will on the ground that the deceased lacked testamentary capacity and where a claim is made, can be crucial in defending the claim. 

Address Potential Undue Influence

To protect against undue influence, ensure that the testator receives independent legal advice without the presence of potential influencers. Arrange for the testator to meet their solicitor alone to discuss their wishes freely. This helps ensure that the Will genuinely reflects the testator’s intentions and is not the result of coercion or pressure from beneficiaries.

Supporting Statements 

Encourage the testator to prepare a statement or affidavit explaining the reasons for any changes made to the Will. If a claim arises, this documentation can be important to provide the Court with a first person narrative of the reasons for the Will. These documents should be prepared by an experienced wills and estate solicitor to best ensure they are admissible in Court and serve their purpose.

The Importance of Seeking Legal Advice for Will Disputes in NSW

If you haven’t been adequately provided for and would like to speak to a lawyer about seeking more from an estate of a person who has died, contact Empower Wills and Estate Lawyers today. 

Navigating will disputes in NSW can be complex and stressful. Seeking professional legal assistance ensures that your rights are protected and that the dispute is handled efficiently. Empower Wills and Estate Lawyers in NSW have experience in resolving such disputes with expertise and care whilst considering relevant family law considerations. Contact us on 1300 414 844 for professional assistance today. Whilst we do not offer legal aid in estate matters, we may be able to offer a no win, no fee arrangement in certain circumstances. 

Liability limited by a scheme approved under Professional Standards Legislation. 

Disclaimer: the information in this article relates to NSW law as at the date it was written and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances, needs and objectives.