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) prescribes 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’) to contest a will. 

Preliminary Steps

The first step if for you to attend a client conference with one of our inheritance lawyers. 

The client conference is an opportunity for you to provide an overview of the facts and circumstances and for us to ask further questions.

Once we have an understanding of the facts and circumstances and have obtained a copy of the will and any other relevant documents we will provide you with written legal advice to best ensure that you understand the process and the strength of your position from the outset. 

Probate

Once you have been advised of the strength of your claim, we may write to the executor, other parties or government agencies to obtain further information and documentation. 

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. 

A person may contest a will before or after probate is granted. 

Establishing Eligibility and Grounds To Contest a Will in NSW

The first step to contest a will is to determine whether the person is an ‘eligible person.’

Eligible persons are defined in section 57 of the Succession Act 2006 (NSW) as including a spouse, de facto spouse, child, former spouse, a wholly or partly dependant grandchild or member of the deceased’s household, and those with whom the deceased person was living in a close personal relationship at the time of the deceased’s death.

In the case of a former spouse, a wholly or partly dependent grandchild or member of the deceased’s household, and 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’ to constitute an eligible person. In other words, there is an additional threshold that applies to these applicants. 

Negotiation

Once you have confirmed that you are an ‘eligible person’ and have received advice on the strength of your claim, we may commence negotiations by writing to the executor and other beneficiaries to make a settlement offer or to respond to a settlement offer. 

Most disputes over wills and estates can be resolved through negotiations.

In some cases negotiations can achieve a fast resolution. In other cases, negotiations may continue for months or longer. Negotiations can occur before court proceedings have been commenced and can continue after proceedings have been commenced. 

If a settlement can be reached, the parties may choose to formalise the agreement through court orders or a private agreement (i.e. Deed of Family Arrangement), depending on the circumstances. 

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

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 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 require court intervention.

Litigation

If negotiations and mediation do not resolve the dispute, and you have received advice in relation to your prospects, you may decide to commence formal court proceedings. This will involve the preparation of court documents and evidence. 

We provide our clients with firm and fearless legal representation and dedicate ourselves to securing the best possible outcome.

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 parties offer to settle during negotiations, the court may order that you pay one (or more) of the other parties’ costs. Costs orders in will and estate disputes can be significant and can often exceed $150,000 or more.

Contact us today

If you have questions about your ability to contest a will of a person who has died in the past 12 months, contact us now on [email protected] or 1300 414 844 for a confidential and obligation-free initial consultation. 

Want to learn more?

Read more about the cost of contesting a will in NSW here.

Read more about the evidence you need to gather when contesting a will here.

Read more about the role of a court in a will contest claim here.

Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. 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 and circumstances.