Disputing a Will

Disputing a Will

Understanding Will Contests and Disputes in New South Wales

In New South Wales, a will-maker (otherwise known as a ‘testator’) has testamentary freedom to leave their estate to any one or more beneficiaries of their choosing. However, under the Succession Act 2006 (NSW) an eligible person who believes they were not left adequate provision in a Will may bring a claim against the deceased estate, in what’s referred to as a ‘family provision claim.’ If successful, a family provision claim effectively rewrites the distribution of the deceased’s estate, overriding the original wishes of the testator.

This process is different from challenging a will, which brings into question the validity of the will itself on grounds such as: whether or not the testator lacked testamentary capacity to make the Will, whether there were suspicious circumstances surrounding the preparation of the Will, or whether the Will is a product of undue influence or fraud.

Who is eligible to dispute a Will?

In order to successfully dispute a Will, a person must first establish that they have legal standing to bring a claim. This involves establishing that they are an ‘eligible person.’ Not just anybody is able to make a family provision claim. In NSW, an eligible person is defined in section 57 of the Succession Act 2006 (NSW) as including a spouse, de facto partner, child, former spouse, dependant grandchild, dependant past member of the deceased’s household, and a person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.

Whilst a spouse, de factor partner and child constitute ‘eligible persons’ without more, a former spouse, dependant grandchild, dependant past 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, must also satisfy a court that there are ‘factors warranting the making of an application.’

This criteria is directed at establishing whether the deceased had a moral duty to provide for this person. In other words, these class of eligible persons must satisfy an additional threshold to have standing to bring a claim.

Once a person can show they are eligible to contest a will by establishing their relationship with the deceased, the court will then consider whether the applicant has been left ‘adequate provision’ for his or her proper maintenance, education or advancement in life. Section 60(2) of the Succession Act 2006 (NSW) sets out 16 factors that a court may have regard to when determining a claim.

Time Limits for Disputing a Will in New South Wales

Strict time limits apply in relation to family provision claims. In NSW, an application for a family provision order must be made no later than 12 months from the date of death of the deceased person. This application can be made before or after a grant of probate has been made.

This is in contrast with Victoria, South Australia, and Western Australia where a claim must be made within six months from the date probate has been granted.

The time limits differ from state to state. Some deadlines run from the date of death while others run from date probate is granted or the date of the grant of administration. A person should seek advice in relation to their specific circumstances.

Grounds for Disputing a Will in New South Wales

A person may contest or dispute a Will if they are an eligible person and can show they did not receive adequate provision for their proper maintenance, education or advancement in life from the deceased’s will or through the operation of the intestacy laws. In other words, the claimant is seeking a share, or greater share, of the deceased’s estate.

In NSW, an application for a family provision order must be filed with the court within 12 months from the deceased’s death unless this deadline is extended by court order or with the consent of all parties.

The Process of Disputing a Will in New South Wales

Identifying Grounds for Dispute

Once you’ve established standing as an eligible person, and a claim has been commenced within the prescribed timeframe of your state or territory, you must then identify grounds for disputing the will. This requires you to satisfy a court that the testator’s will failed to provide ‘adequate provision’ for your proper maintenance, education and advancement in life.

It’s important to bear in mind that a deceased estate is all the property owned by the person who has died, or belonging to the person who has died, either solely or as tenants in common with another person, as at the date of their death.

Consulting with a Wills and Estate Lawyer

Contact Empower Wills and Estate Lawyers for expert advice on how to navigate the complexities of the will dispute process. We can provide you with firm and fearless legal representation and dedicate ourselves to securing you the best possible outcome.

Understanding Time Limits

In NSW, a person must lodge a claim within 12 months from the deceased’s death unless the timeframe is extended by court order where it is shown there was “sufficient cause” for a delay, or with the consent of the parties to the proceeding.

Gathering Evidence

A legal representative will assist with gathering and preparing the evidence to advance their client’s case. Objectively strong claims can fail if they are not supported by proper evidence, and many will disputes are decided in court based on the extent and quality of the evidence.

Evidence comes in many forms, including: written evidence, testimonial evidence, physical evidence, expert evidence, records and information from third parties, digital and electronic evidence, medical evidence, and expert evidence.

Filing a Claim

The first step in the process is to seek legal advice in relation to your claim. Advice should be sought from a solicitor who has experience in this particular area of law and in your jurisdiction.

If you have been advised that you have a claim and you wish to commence legal proceedings, you may instruct your solicitor to prepare and lodge the claim in court. Depending on the nature of the claim, your solicitor will either prepare a Statement of Claim or Summons, and an affidavit. Each jurisdiction has different requirements and it’s important that you seek advice from a solicitor who has experience in the particular jurisdiction.

Negotiations and Mediation

Not all Will disputes result in litigation. In fact, the majority of Will disputes and contests are resolved outside of a courtroom setting and without the need for litigation.

For example, many disputes are resolved through negotiations. In some cases negotiations can achieve a faster resolution. In other cases, negotiations may continue for many months or longer. Negotiations can occur before court proceedings have been commenced and can continue after proceedings have been commenced. Negotiations may also involve mediation where the parties meet with an independent mediator with a view to reaching a settlement.

If a settlement can be reached through negotiations, the parties will usually formalise the agreement in writing, such as a Deed of Family Arrangement, and may ask the court to formalise the settlement in formal court orders.

Whether a dispute can be resolved outside of court (i.e. before or after proceedings have been commenced) will depend on the facts and circumstances of the case including each party’s willingness to reach agreement.

Court Proceedings

If negotiations and mediation do not resolve the dispute, a person may decide to press their claim in court by commencing formal court proceedings. Before commencing legal proceedings, a person should seek legal advice on the prospects of their claim. As with all court proceedings, there are risks.

Judge’s Decision

The role of the Judge in family provision claim proceedings is to facilitate the smooth conduct of the hearing to ensure procedural fairness to all parties while applying the relevant law.

Their duties range from hearing evidence, determining admissibility of evidence, and ultimately, determining the outcome of the proceedings.

After hearing evidence from all parties, the Judge will make a decision on the success of the application.

Resolution and Distribution

Once a Will dispute has been settled and finalised, the executor or administrator will need to distribute the estate in accordance with the agreement or court orders.

In NSW, prior to making any distributions, the executor or administrator should publish a “Notice of Intended Distribution” online via the Court Website which gives members of the public and any creditors notice of the impending distribution.

If no responses are received in response to the Notice of Intended Distribution, the executor or administrator may decide to proceed with making distributions.

Once all the estate’s debts and administration costs have been paid from the estate and all disputes have been resolved, it is only then that the executor may be able to distribute the remainder of the estate.

Handling Legal Costs

Costs in Will disputes can be complex.

As a general principle, where a claim is successful, the court may order the estate to pay part of the claimant’s legal fees. In other words, the successful party’s costs may be paid out of the estate.

Where a claim is unsuccessful, the court may order the claimant to pay part of the estate’s legal costs.

Where there are more than two parties, there may be several parties who are either wholly or partly successful. The law surrounding costs in Will and Estate disputes is complex and requires advice from an experienced Will and Estates lawyer having regard to your specific facts and circumstances.

How Dispute Lawyers Can Help with Contesting a Testator’s Will

If you need a lawyer to contest a Will, you should seek the advice from expert lawyers, like Empower Wills and Estate Lawyers. We urge you to seek advice as soon as possible on your estate-related legal matter, such as if you think you have grounds to dispute a Will, or are an executor tasked with defending an estate against a claim. Estate planning and estate litigation is a specialist area of the law and experienced estate lawyers are best placed to assist you with navigating the complexities of contesting a Will.

Looking for expert Wills and Estate lawyers to assist you in NSW?

We’re here to help. Whether you need to contest or challenge a will (noting that the process of challenging a will is different to that of contesting a will), we urge you to seek legal advice as soon as you can, subject to the various time limitations from the date of death to notify the executor of your intent to claim.

The first step is to find an experienced solicitor who can advise you on the prospects of your claim and guide you through the process.

Frequently Asked Questions

The timeframe will vary from case to case, but ultimately depends on the parties’ willingness to negotiate.  If the parties are willing to negotiate, an agreement may be achieved within weeks. However, where the parties are not willing to negotiate, the matter may need to proceed to a final court hearing, in which case the dispute may take 1-2 years to reach an outcome, depending on the court’s availability and the timing of any appeals. 
The cost of contesting a will depends on several factors, including the timing of the resolution, the size and complexity of the estate, and the fee structure of the legal representatives.  If a claim is successful, the court may order the estate and/or the losing party to reimburse you for a part of your legal costs. However, there is no guarantee that your costs will be paid from the deceased’s estate or by another party and litigation should not be commenced on that assumption.  If a claim is unsuccessful, the court may order you pay the estate’s or another party’s costs.
Challenging a Will is different to contesting a will. Contesting a Will involves bringing a claim on the basis that you did not receive adequate provision from the estate. Challenging a Will, however, involves challenging the validity of the Will itself. A person can challenge the validity of the Will if they can show the person was not of sound mind (that is — did not have testamentary capacity at the date the Will was made), where the testator was subjected to undue influence, or where the Will was a product of fraud, the court will find the whole Will to be invalid. If there were suspicious circumstances surrounding specific clauses in the Will, the court may find that only those clauses of the Will are invalid and grant probate or administration for the remainder. The filing of a probate caveat may be recommended in some circumstances. 
Yes. A vast majority of Will dispute cases can be settled outside of court through negotiations conducted by an experienced Wills and Estate lawyer. Court proceedings may be required in matters where negotiations and mediation prove unsuccessful.
The deceased’s assets are distributed in accordance with either the terms of the will (or distribution in accordance with the laws of intestacy), pursuant to an agreement between the beneficiaries, or pursuant to a court order.  Are you in need of a lawyer experienced in Wills and Estate disputes? If you need legal advice about disputing a Will, or are an executor or administrator dealing with legal claims on an estate, or have a family law dispute, call us on 1300 414 844. Empower Wills and Estate Lawyers is here to help.

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Disclaimer: the information in this article 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.

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