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Guide to Contesting a Will NSW
Discover your rights and options in contesting a will in NSW with our expert guide, detailing the legal provisions and processes for potentially altering a deceased’s will through a family provision order.
In NSW, a person can leave their assets to anyone they choose when they die, in other words, the 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) sets out the requirements that must be satisfied in order to obtain a “family provision order.”
If you believe you are entitled to a larger share of a family member or friend’s estate, you should seek legal advice on your eligibility and strength of your claim (known as the ‘prospects of success’.)
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Who Can Contest a Will in NSW
Only an ‘eligible person’ can contest a will in NSW.
‘Eligible person’ is defined in section 57 of the Succession Act 2006 (NSW) and includes a spouse, de facto spouse, child, former spouse, a wholly or partly dependant grandchild or member of the deceased’s household, or those with whom the testator was living in a close personal relationship at the time of the deceased’s death. This is the first requirement a person must meet in order to contest a will in NSW.
In the case of a former spouse, a wholly or partly dependent grandchild or member of the deceased’s household, or those with whom the deceased person was living in a close personal relationship at the time of the deceased’s death, the person must also show that there are ‘factors which warrant the making of the application’.
In other words, there is an additional requirement that applies to the following applicants.
- A former spouse of the deceased
- A grandchild of the deceased who is wholly or partly dependent on the deceased
- A member of the deceased’s household who is wholly or partly dependent on the deceased
- A person with whom the deceased was living in a close personal relationship at the time of the deceased’s death
Making a Family Provision Claim in NSW
In NSW, a person may bring a family provision claim by filing an application with the court (typically the Supreme Court of NSW) for a ‘family provision order’ under section 59 of the Succession Act 2006 (NSW).
Not all disputes require court intervention. In some instances, a person can write to the executor and other parties to put them on notice of their intention to bring a family provision claim, which may lead to the parties negotiating and/or mediating and reaching a resolution outside of court.
Whether or not the matter will require court intervention will depend on the facts and circumstances including the size and nature of the estate, the complexity of the issues, the evidence, and ultimately, each party’s willingness to negotiate.
The Evidence You Need to Contest a Will in NSW
Below is the evidence you may need to contest a will in NSW:
- Documentary evidence (i.e., last will, prior wills, codicils, solicitor file notes, other testamentary documents).
- Testimonial evidence (i.e., eyewitness accounts).
- Physical evidence.
- Expert Evidence (i.e., medical evidence to assess testamentary capacity).
- Digital and Electronic evidence.
- Medical Evidence.
The Difference Between Contesting a Will and Challenging a Will
Generally, a person may contest a will or challenge a will. These are two distinctly different processes 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, the validity of the will itself, including circumstances surrounding its origin, execution, and its meaning (otherwise referred to as its ‘construction.’) This includes circumstances where questions arise in relation to the will’s execution, or the circumstances surrounding the preparation of the will, such as where there were suspicious circumstances, undue influence, fraud, or a lack of testamentary capacity.
A person may contest a will and challenge a will at the same time and the issues are often considered and determined in the same proceedings.
Frequently Asked Questions
Is there a time limit on contesting a will?
Yes there is a time limit to contest a will. 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.
Is it expensive to contest a will?
The cost of contesting a will depends on several factors, including the complexity of the issues, the timing of the resolution, and ultimately, each party’s willingness to negotiate.
The fees that a person may pay will depend on their legal representative’s fee schedule and fee structure which are set out in their cost’s agreement. The legal representatives may charge the client for work on an ongoing basis or may offer a ‘no win no fee’ arrangement where the client is not required to pay the costs of the lawyer (but will often still be required to pay the cost of a barrister and disbursements) unless and until a successful outcome is achieved.
The fees that a person may pay will also depend on the size and complexity of the estate. It is often the case that a large or more complex estate may require more detailed and extensive legal advice and assistance which may increase the legal costs.
The fees that a person may pay will also depend on the timing of the resolution. Those matters that are unable to be resolved through negotiations and proceed to a court hearing will have higher fees. The legal costs for an average-sized estate that proceeds to hearing can exceed $100,000 or more.
In some cases, for instance if you are successful, the court may order that the deceased’s estate and/or a losing party reimburse you for some of your legal costs. However, there is no guarantee that your costs will be paid from the deceased’s estate or by another party.
In other cases, the court may order that you pay the executor or other parties’ costs.
Who pays the court fees?
The person contesting the will is required to fund their own legal fees throughout the process.
The cost of contesting a will depends on several factors, including your legal representative’s fee schedule and fee structure, the size and complexity of the estate, and the timing of the resolution.
In some cases, for instance if you are successful, the court may order that the deceased’s estate and/or a losing party reimburse you for some of your legal costs. However, there is no guarantee that your costs will be paid from the deceased’s estate or by another party.
In other cases, the court may order that you pay the estate’s costs or another party’s costs. Fees can be significant and exceed $100,000 in some cases, so the risk of a costs order should always be front of mind to a client.
How long does it take to contest a will?
Most will and estate disputes can be resolved through negotiations.
In some cases negotiations can achieve a fast resolution, over a period of months. In other cases, negotiations may continue for extended periods of time, even years.
Negotiations can take place before, and can continue after, court proceedings have commenced.
If negotiations and/or mediation prove unsuccessful and the matter proceeds to a court hearing, it can often take 1-2 years before an outcome (a court decision) is achieved or longer if a party appeals the decision to a higher court (the Court of Appeal).
Will I need to be part of mediation outside of court?
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.
Parties are usually required to attend mediation before a matter is listed for a court hearing.
If an agreement is reached at mediation, the parties may still require further involvement of the court (i.e. to approve the agreement), depending on the terms of the settlement.
If negotiations and mediation prove unsuccessful, the matter may proceed to a court hearing.
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Learn More About Contesting a Will in NSW
Looking to Contest a Will in NSW?
If you believe you have been unfairly left out of a will or have received less than you were expecting, contact us now on [email protected] or 1300 414 844 for a confidential and obligation-free initial consultation.
We offer flexible fee structures tailored to out clients circumstances and in some circumstances offer “no win no fee” agreements.