Do you have a question or concern about your claim within a will, or a suspicion that a will was not prepared fairly? Notably, such issues fall into two distinct areas of will dispute law: challenging a will, and contesting a will.

The differences between challenging a will and contesting a will under NSW law are integral in deciding how and why to engage a will dispute lawyer in Sydney.

Contesting a will means a person takes issue with how much (or how little) they receive within a will. In NSW, a person may bring a claim against the estate under section 59 of the Succession Act 2006 (NSW) for a share, or larger share, of an estate to which they believe they are entitled.

Challenging a will means to a person takes issue with the ‘validity’ of the will itself, including circumstances surrounding its origin, execution, and its meaning (otherwise referred to as its ‘construction.’)

Notwithstanding these core differences, in practice, both claimants will usually have the same objective – to secure a larger share of the estate. 

What it Means to Contest a Will in NSW

In NSW, a person may contest a will under the Succession Act 2006 (NSW) if they can establish that the benefit they received under the will was inadequate. Will contest claims are more commonly known as ‘family provision claims.’

While most claims can be resolved through negotiations and without court intervention, some disputes proceed to a court hearing. 

Grounds for Contesting a Will in NSW

A person may contest a will if they can establish the following:

1. they are an eligible person (see below); and
2. the deceased’s will (or the intestacy rules) did not make adequate provision for an eligible person’s proper maintenance, education or advancement in life.

Who Can Contest a Will

Section 57 of the Succession Act 2006 (NSW) defines “eligible person” to include:

• spouse
• de facto spouse
• child
• former spouse
• wholly or partly dependant grandchild
• wholly or partly dependant members of the deceased’s household, or
• a person with whom the deceased person was living in a close personal relationship at the time of the deceased’s death.

The Process of Contesting a Will

The first step is to contact an experienced inheritance lawyer, like our team at Empower Wills and Estate Lawyers, who will be able to assess the strength of a claim. 

Once a specialised inheritance lawyer has assessed the strength of a claim, a person may instruct them to write to the executor and/or other beneficiaries to explain their situation, supported by legal reasoning, and – if appropriate – make an offer or respond to an offer. This usually marks the commencement of a negotiation process which may last for many months. If negotiations ultimately fail, the case may proceed to court.

Importantly, a family provision claim in NSW 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 outside this timeframe.

Challenging a Will Explained

To challenge a will means to take issue with the validity of the will itself, including circumstances surrounding its origin, execution, authenticity, and its meaning.

Grounds for Challenging a Will

Examples of grounds for challenging a will include:

• Undue influence – i.e. where a will-maker was coerced into making or updating a will they would not have otherwise made.
• Suspicious circumstances – i.e. the presence of an individual who was present when the will-maker gave instructions to their lawyer, who then goes on to receive an unusually large benefit under the will. More concerningly, there are also circumstances where that individual prepared the new will themselves. 
• Lack of testamentary capacity – i.e. where the will-maker had an illness impacting on their memory or mental function such as dementia or Alzheimer’s Disease when they made their will. 
• Fraud – i.e. where a will was brought about through false or misleading statements. 

Who Can Challenge a Will

A person’s eligibility to challenge a will depends on the grounds upon which they are seeking to challenge the will, and their relationship to the deceased. Potential claimants may include:

• A family member or close friend of the deceased whose will has not been properly executed.
• A family member or close friend of the deceased whose will is unclear in its interpretation.
• A person who is named as a beneficiary in an earlier will who is left out of a subsequent will, or had their benefit significantly reduced.
• A family member or close friend of a deceased person who died with dementia or Alzheimer’s Disease.
• A family member or close friend of the deceased who was in  a fragile mental or physical state when they prepared their will, such as in residential aged care, respite care or palliative care.

If a person falls into any of the above categories or has a specific inheritance question, we recommend that they obtain advice from an expert wills and estate lawyer at Empower Wills and Estate Lawyers. 

The Process of Challenging a Will

Similar to the process of contesting a will, the first step is to contact an experienced inheritance lawyer who will be able to assess the strength of a claim. The lawyer will obtain a copy of the will and other relevant documents (i.e. medical documents and evidence from relatives) and ask questions to gain a better understanding of the facts and circumstances. 

Once a lawyer has advised on the strength of your claim, the lawyer may be instructed to write to the executor and/or other beneficiaries to explain their client’s position supported with legal reasons, and make an offer or respond to an offer. This usually marks the commencement of a negotiation process which may last for many months.  If negotiations ultimately fail, the case may proceed to court.

What Are the Possible Outcomes With Challenging or Contesting a Will?

When a person challenges a will (i.e. on the grounds of suspicious circumstances, undue influence or a lack of testamentary capacity), the executor and the beneficiaries can negotiate and agree to divide the estate in different proportions to those set out in the will, usually in return for an agreement that no party will commence other court proceedings which would later bring the issue back into dispute.

If the parties reach agreement outside of court, the parties may formalise the agreement in a private agreement (i.e. Deed of Family Arrangement). If an agreement is not reached during negotiation phases, it may proceed to a court hearing.

When a person contests a will, the parties can reach agreement without court intervention in a similar manner to a challenging to a will. However, some matters will require a court hearing to determine the outcome. 

Executor Rights and Responsibilities

The executor’s rights include the right to engage a lawyer to assist them with administering the estate and the right to be reimbursed from the estate for the costs involved in administering the estate.

The executor’s responsibilities include:

• carrying out the instructions in a person’s will.
• administering the estate including locating the will, making funeral arrangements (though this may depend on the family situation), notifying government agencies of the death, and keeping the beneficiaries up to date.
• applying for probate, identifying all assets and debts, paying debts, paying legacies, transferring specific gifts, distributing the estate to the beneficiaries in accordance with the terms of the will, and preparing tax accounts, among other duties.
• defending the estate against claims.

Rights and Responsibilities of the Executor When a Will is being Challenged

Once an executor has been notified of a potential challenge to the will, the executor has the right to engage a lawyer to assist them with identifying the nature of the claim and the grounds upon which the executor may defend the claim. The executor has the right to be reimbursed from the estate for the costs involved in defending the claim.

The executor is responsible for contacting the beneficiaries and informing them of the potential claim.

The executor is also responsible for defending the claim which will often require the executor to make enquiries and obtain information relevant to the claim, for instance, where a claim relates to the testator’s testamentary capacity, the executor may obtain a copy of the testator’s medical history and in the case of undue influence or suspicious circumstances, the executor may obtain information that relates to the circumstances surrounding the preparation and execution of the will.

Rights of the Executor When a Will is being Contested

Once an executor has been notified of a potential will contest claim, the executor has the right to engage a lawyer to assist them with identifying the nature of the claim and the grounds upon which the executor may defend the claim and has the right to be reimbursed from the estate for the costs involved in defending the claim.

The executor is responsible for contacting the beneficiaries and informing them of the potential claim.

The executor is also responsible for defending the claim which will often require the executor to make enquiries and obtain information relevant to the claim, for instance, the executor may make enquiries with the beneficiaries, the will-drafter (often a solicitor) and other witnesses to ascertain information relevant to the factors in section 60(2) of the Succession Act 2006 (NSW) and specifically, any factors that operate to weaken the claimant’s claim.

Ways to Protect a Will From Being Challenged or Contested

Obtain Legal Advice When Drafting Your Will

If you want to protect your will from being challenged or contested in the future, there are some important steps you can take now, before it’s too late. 

First and foremost, every adult – no matter their age or family situation – should have a will that is clear, precise and current. Wills should be prepared by experienced will and estate lawyers who have the knowledge and skill to identify obvious risks of claims against the estate, and to advise on what steps can be taken to best protect the estate against such claims in the future.

Contact us today if you feel you could benefit from the preparation of additional documentation to support the validity of your will, protecting it against future claims. 

Ensure That Everyone Who Is Eligible To Contest Your Will is Adequately Provided For in Your Will

An eligible person will only succeed in contesting a will if they can establish that the deceased person’s will made inadequate provision for their proper maintenance, education or advancement in life.

In other words, a person’s claim is bound to fail if, at the time of the court considering the application, the deceased person’s will provided ‘adequate’ provision for the person’s proper maintenance, education or advancement in life.

A will-maker may be able to protect against a future claim by leaving a potentially eligible claimant an amount of provision that constitutes ‘adequate provision’, rather than nothing.

However, the challenge lies in determining what might constitute ‘adequate provision’ as this is only ever something that a court can determine at the time of determining an application. It is not something that a lawyer can calculate or forecast with any precision, so you should discuss it in the early phases of your will drafting with your lawyer.

While a lawyer cannot advise a client how much to leave any particular beneficiary, a lawyer can advise a client of the risks of future claims against the estate and can advise a client whether the provision made for a particular beneficiary is likely to constitute ‘adequate provision’ for the purposes of section of the Succession Act 2006 (NSW). 

Structure Your Assets

Structuring your assets in more lateral ways, such as the formation of trusts or companies, can exclude certain assets from falling within a deceased estate. This is a complex form of asset protection which is well-suited for people with larger estates, such as multiple properties and share portfolios. 

Contact us to find out how the formation of a trust can aid in protecting your estates after your death.

Transfer Some or All of Your Assets While You are Still Alive

Another way to potentially reduce the risk of a court changing what each beneficiary receives is to dispose of assets inter vivos (during one’s life). In practice, this involves advancing inheritance to chosen beneficiaries before death.

An experienced wills and estates lawyer will be best placed to provide advice in relation to ‘notional estates’ and whether or not an asset may be ‘clawed back’ into the deceased’s estate. 

Create a Binding Death Benefit Nomination

Superannuation is an asset that is held in trust for the beneficiary or member for their retirement.

Notwithstanding the ability to choose a particular superannuation fund and in some cases, to even choose specific assets, the money is effectively controlled by the trustee of the trust.

The beneficiary or member of the trust will have an opportunity to complete a binding death benefit nomination form within which they can nominate who they wish to receive their superannuation and any death benefit proceeds, upon their death. This gives the beneficiary or member substantial control over who they want to leave their money to.

When the beneficiary or member dies, the trustee of the trust is obliged to distribute the proceeds of the account (including any death benefit proceeds) in accordance with any current binding death benefit nominations. A binding death benefit nomination lasts for three years and therefore requires regular review and updating.

It is also important to bear in mind that where a person nominates ‘legal representative’ in their binding death benefit nomination, the benefit will fall within their estate and will be dealt with in accordance with the terms of their will. 

At Empower Wills and Estate Lawyers We Specialise in Will Disputes

If you have been left out of an estate or believe you may have grounds to challenge a will, contact us now on [email protected] or 1300 414 844 for a free and confidential consultation.

We offer flexible fee structures designed specifically for each client including sliding fee scales, payment plans, pensioner discounts and conditional ‘no win, no fee’ costs agreements in select cases.

Want to learn more?

Read more about examples of wills that have been contested here.

Read more about how to stop someone contesting a will here.

Read more about who can contest a will 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.