how to contest a will in NSW

How to Contest a Will in NSW

How to Contest a Will in NSW

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 make 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 in New South Wales (NSW) (known as the ‘prospects of success.’)

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 & Family Provision Claim 

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 to assist in making a claim. 

In NSW, a family provision claim must be commenced within 12 months from the date of the deceased’s death, unless the Supreme Court of NSW 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 a grant of probate. 

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 in NSW (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.

Time Limits to Contest a Will 

In NSW, a family provision claim must be commenced within 12 months from the deceased’s date of 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. 

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 solicitor and obtain legal advice that takes into account your specific facts and circumstances. 

Frequently Asked Questions

In NSW, grounds for contesting a will include inadequate provision for those entitled to make a claim, undue influence, and challenges to the validity of the will. If you believe you were not adequately provided for, especially if you lived with the deceased or were financially dependent on them at the time of their death, you may be able to make a family provision claim in NSW. This type of claim can be brought if the estate of the deceased was not distributed fairly or as legally required.

Individuals eligible to contest a will include spouses, children, and anyone who had a close personal or de facto relationship with the deceased, or who were financially dependent on the deceased at the time of their death. If you lived with the deceased or were partly dependent on them, you could challenge the will by making a claim against the estate. The court will look at whether provision out of the estate made by the deceased was adequate considering the size of the estate and your financial position.

The process of contesting a will in NSW involves proving your eligibility to claim and demonstrating your relationship with the deceased. A family provision claim must be made in the Supreme Court within 12 months of the date of death or the date probate is granted. Legal representation can help you navigate these proceedings, especially if considering a no win no fee arrangement, which may reduce upfront legal costs.

You have 12 months from the date or time of death of the deceased to lodge a claim against their estate in NSW. However, if you were outside NSW or not aware of the death immediately, the court may consider extending this period. It’s important to commence your claim promptly to ensure you are within the legal time limits.

If your claim against a will in NSW is successful, the court will determine how the estate should be redistributed to adequately provide for you, potentially increasing your share or allowing you to receive further provision. This might include financial compensation or redistributing specific assets held in family trusts or by the estate. However, if your claim is unsuccessful, be prepared for the possibility that you might have to cover your own legal costs, unless a no win no fee agreement applies.

In NSW, if you miss the 12-month deadline from the date of the deceased’s death to lodge a claim against their estate, you may still be able to claim under certain conditions. The court has the discretion to grant an extension if you can demonstrate that you were unaware of the death in time or other exceptional circumstances prevented you from making a timely claim. It’s essential to provide substantial justification to the court for why the claim was delayed. Consulting with a solicitor experienced in family provision law can help you navigate this process and potentially make a successful claim even after the initial deadline has passed.

In NSW, you can contest a will on the grounds that it does not make adequate provision for your maintenance, education, or advancement in life. This is particularly relevant if you were financially dependent on the deceased, lived with the deceased at the time of their death, or had a close family relationship. To make a successful claim, you need to prove to the court that the deceased had a moral duty to provide for you and that the will fails to meet this obligation. The court will consider factors like your financial position, the size of the estate, and any provisions made by the deceased. If you are contemplating such a claim, it’s advisable to consult with legal experts who specialise in contesting wills in NSW to guide you through the process and ensure that your claim is brought effectively.

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