Success Rate of Contesting a Will in NSW
In NSW, the success rate of contesting a Will (otherwise known as a family provision claim) depends on the facts and circumstances of the particular case. Each case is unique and different.
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Understanding the Basics of Contesting a Will in NSW
In NSW, a person may contest the will of a deceased person if they can establish that they are an eligible person, and that adequate provision for their proper maintenance, education or advancement in life was not made by the deceased’s will.
If successful, the court has power to effectively change the terms of a deceased person’s will.
Factors Influencing the Success Rate of Will Contests in NSW
There are many factors which influence the success rate of family provision claims in Australia. Some of these are set out below.
Claimant’s relationship to the deceased
The claimant’s relationship to the deceased is a key factor.
Whilst each case turns its own facts, the spouse of the deceased, a person in a de facto relationship with the deceased, or a child of the deceased, will generally have a stronger claim than for instance, a former spouse or more distant relative, unless of course the deceased considered the person akin to a child.
More distant relatives and non-relatives will also have to satisfy addition criteria, including showing that they were dependent on the deceased at some point in their life.
Legal grounds for the contest
A person may have grounds to contest a will if they can show that they are an eligible person and have not been provided with adequate provision from the deceased’s estate for their proper maintenance, education and advancement in life. Claimants other than the deceased’s spouse, de facto or children will have to satisfy one additional criteria, namely, that ‘there are factors which warrant the making of the application.’
When determining whether adequate provision has been made, the court may have regard to the factors in section 60(2) of the Succession Act 2006 (NSW). Most cases turn on these factors.
Quality of evidence presented
The success of a case is largely dependent on the quality of evidence. An objectively strong case may fail if the evidence is insufficient.
Evidence comes in many forms and includes written evidence, testimonial evidence, documentary evidence, financial evidence, physical evidence, and expert evidence.
Timeliness of the claim
In New South Wales, a family provision claim must be commenced within 12 months from the date of the deceased’s date of death, unless an extension is obtained by court order or consent.
A claim lodged outside the statutory period may be rejected by a court.
A family provision claim can be brought before or after Probate or Letters of Administration has been granted. However, once Grant of Probate has been issued, there is an increasing risk that assets may be distributed.
Representation by experienced lawyers
Whilst many people may not consider Wills and Estates a specialised area of law — it is.
As with any area of law, the prospects of success is usually improved by engaging a lawyer with experience in the area. Wills disputes are no different. An experienced lawyer will be able to combine their knowledge and experienced with proven tactics to try and achieve the best outcome for their client.
The complexity of the estate
The nature and size of the deceased’s estate can have a direct impact on the prospects of success.
Generally, a claim on a larger estate may give rise to a stronger claim than a claim on a smaller estate simply because there is a ‘larger pie’ to share amongst the beneficiaries and claimants.
Prior agreements and Wills
Prior Wills and prior promises made by the deceased during their life may be relevant to a family provision claim, particularly if the last Will was prepared by a sick or elderly Will-maker shortly before their death.
Mediation and negotiation efforts
Many matters can be resolved through negotiations and mediation without the need for court proceedings. Mediation is where the parties meet with a mediator with a view to reaching a settlement. Resolving matters through negotiations can be far quicker and cheaper than if the matter proceeded to a final hearing in court.
When it comes to negotiations, it is important to seek the assistance of an experienced solicitor will be able to apply specific negotiation tactics to achieve the best chance of success.
Statistical Overview of the Success Rate of Contesting a Will in NSW
As the success rate of a claim will depend on the facts and circumstances of the claim, statistics have limited use.
If you would like to know whether you have claim, contact Empower Wills and Estate Lawyers on 1300 414 844 to discuss your matter.
Challenges in Contesting a Will: Is It Worth Contesting?
Whether a Will is worth contesting depends on many factors, including the claimant’s need, the size and nature of the estate, the evidence available, the timing, and the claimant’s risk tolerance.
It is important to note however that many cases can be negotiated with limited risk to the client. This is why negotiations should always be considered.
By comparison, the risk significantly increases once court proceedings are commenced as the claimant, if unsuccessful, may be ordered to pay the other side’s legal costs.
Legal Strategies to Increase the Success Rate of a Will Contest in NSW
Identifying what strategies are most appropriate for any particular matter will depend on the facts and circumstances in a case. Strategies to increase prospects may include:
- acting promptly,
- engaging an experienced solicitor,
- banding together with other claimants,
- negotiating early and firmly,
- identifying the other side’s weaknesses,
- identifying your own strengths,
- having flexibility in terms of outcomes (not just wanting cash),
- be willing to negotiate,
- and having realistic expectations.
Role of a Lawyer in Improving Will Dispute Success Rates
The law around family provision claims can be complex and a claimant will ultimately improve their prospects by engaging a Wills and Estate lawyer who has experienced with family provision claims. The lawyer will be able to apply their knowledge and experienced and strategy with a view to obtaining the best outcome for the client.
Seeking Expert Legal Advice to Contest a Will in NSW
If you have been disinherited and would like to know whether you have a claim against an estate, we recommend you seek legal advice by contacting Empower Wills and Estate Lawyers on 1300 414 844 to discuss your matter.
Frequently Asked Questions
How can I determine the success rate of a claim against an estate?
There is no way to determine the success rate of a claim against the estate without considering the facts and circumstances of the particular case. For instance, a person cannot determine the success of a claim based on the nature of the relationship alone.Â
The success rate of contesting a will depends on many factors.Â
Specifically, in NSW, there are 16 factors listed in section 60(2) of the Succession Act 2006 (NSW) which the court may have regard when considering whether to make a family provision order. A lawyer will need to consider these factors when advising their client on the prospects of a claim.Â
What factors are considered to determine the success of a will contest in NSW?
The first requirement considered whether determining the success of a claim is eligibility. The claimant has the burden of establishing they are an ‘eligible person.’ If the claimant is not the spouse, de facto of child of the deceased, they will also need to show there are ‘factors warranting the making of the claim.’
The second requirement considered is whether the applicant received adequate provision for their maintenance, education or advancement in life from the deceased’s Will. When considering whether a claimant received adequate provision, the court may consider the 16 factors set out in section 60(2) of the Succession Act 2006 (NSW) which includes:
- the nature and duration of the relationship,
- dependency on the deceased,
- the size and nature of the estate,
- the applicant’s financial needs and resources,
- any disability of the applicant,
- any provision received by the applicant,
- the deceased’s testamentary intentions,
- and the character and conduct of the applicant.Â
Can immediate family members always make a family provision claim?
The question of whether a person can bring a claim is very different to the question of whether a person has prospects.Â
Given the nature of the litigation, anyone can ‘bring’ a claim by filing the relevant court documents with the court. For instance, a grandchild of the deceased person may apply to the court for a family provision order. But the mere fact that a person can bring a claim does not mean that they are eligible to contest the will or that the claim has prospects.
For a person to be successful they must show that they are an ‘eligible person’ and have not received adequate provision for their proper maintenance, education or advancement in life from the deceased person’s will. For applicants who are not the deceased’s spouse, de facto or children, they will need to also show that there are also ‘factors warranting the making of the application.’
The executor of the estate is responsible for defending all claims, both frivolous or genuine.
What criteria must I meet to establish eligibility for contesting a Will?
In NSW, a person must first show they are an ‘eligible person’ to bring a claim. Eligible persons are set out in the Succession Act 2006 (NSW), s57 which includes:
- Spouse
- De facto spouse
- Children (both minor and adult children)
- Former spouse
- Wholly or partly dependent grandchildren and wholly or partly dependent former members of the deceased’s household
- A person in a close personal relationship with the deceased at the date of their death
Claimants other than the deceased’s spouse, de facto or children will also have to show that ‘there are factors which warrant the making of the application.’
The eligible person must then show that adequate provision was not made for their proper maintenance, education and advancement in life by the deceased’s Will. When determining whether adequate provision has been made, the court may have regard to the 16 factors in section 60(2) of the Succession Act 2006 (NSW). Most cases turn on these factors.
How does being part of the immediate family affect my eligibility and chances of success in a Will contest?
Whilst each case depends on its facts and circumstances, generally, the spouse, de facto and children will have stronger claims as there claimants fall within the categories of relatives to whom the deceased owed a moral duty to adequately provide for.Â
More distant relatives may have equal claims if they can show that they were dependant on the deceased and the deceased treated them akin to a child, but these cases are rare.Â
What steps should I take to make a claim in an estate dispute, and how can I assess my chances of success?
Empower Wills and Estate Lawyers have a high success rate of achieving the best outcome for our clients.Â
If you have been unfairly provided for and would like to know whether you have a claim against an estate, or would like assistance with Wills and Estate planning from an experienced law firm, contact us on 1300 414 844 for a free consultation.
If you have recently experienced the death of a loved one, we can also assist if you are considering challenging a Will on the basis that it is invalid on the grounds of undue influence, lack of testamentary capacity, or fraud. Call us today for a free case assessment on contested Wills. Our probate and estate lawyers offer tailored fee structures for all your legal needs, and no win, no fee agreements in select cases.Â
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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.
