Express Enquiry
Contested Wills
Contested wills refer to legal disputes over the validity of a deceased person’s will. Probate lawyers specialise in handling such cases, which can be complex and emotionally charged.
Our lawyers provide legal representation to individuals who are challenging or defending a will in court and help navigate the legal process to ensure your interests are protected.
Why Are Wills Contested?
There are various reasons why a will may be challenged or contested, such as disputes over its legality, claims of coercion, deceit or undue influence, or if an eligible person claims that they have not received a fair share of the estate.
Estate disputes can be a complicated and sensitive process for family members, which often involves taking legal action and appearing before a court. If you are considering contesting a will, it is important to consider your legal rights with us.
Who Can Contest a Will?
Certain individuals in New South Wales have the right to contest wills if they believe that they have been inadequately provided for.
These individuals, known as “eligible persons”, include spouses, a de facto partner, children (including step-children and adopted children), former spouses or de facto partners, grandchildren who were dependent on the deceased person, individuals who were dependent on the deceased person and in a close personal relationship, and individuals who were in a close personal relationship with the deceased person. However, being classified as an “eligible person” does not automatically grant the right to make a family provision claim.
One must also demonstrate that they have not received adequate provision and present reasons as to why they should receive a larger portion of the estate. It is recommended to seek the assistance of our qualified solicitor or barrister if you are uncertain about your eligibility to make a claim.
Loved ones will being contested? Contact our helpline for further information on how we can help you deal with a contested will.
When Can a Will Be Contested?
The period for challenging a will in NSW varies according to the type of claim being made.
Inadequate Provisions
If a person is seeking to contest a will on the basis of inadequate provision, they must act quickly and initiate a family provision claim within the strict time limits of a year of the death. However, this deadline can be extended in special circumstances.
Invalid Will
If a person wishes to contest the will’s validity, they have a 12-year window from the date of the person’s death, although there may be no time limit in cases of fraud or misconduct. Due to the legal complexities involved whether it be mediation or needing to go to court, seeking the guidance of an experienced lawyer is advisable.
What Happens When a Will is Contested?
The following steps usually occur in the process of contesting a will in NSW:
Formal Claim
The person contesting the will (the “claimant”) files a formal claim in the Supreme Court of NSW.
The executor of the will (the person responsible for carrying out the instructions in the will) will then file a response to the claim.
The court will then consider the claim and any evidence presented by both sides. This may include witness statements, medical records, and other relevant facts and documents.
If the Will is Invalid
If the court determines that the will is invalid, it will declare the will void and the deceased person’s trusts and assets will be distributed according to the rules of intestacy.
If the court determines that the will is valid, but the distribution of assets is unfair or unreasonable, it may make orders to alter the distribution of assets. If a settlement cannot be reached, a court hearing may be necessary to determine the outcome.
How to Defend a Contested Will
If a will you are the executor of is being contested, it’s important to seek legal advice from a qualified solicitor or barrister to help you defend the claim. Here are some general steps that may be involved in defending a contested will in New South Wales:
- Once you receive notice of the claim, you should consult a lawyer to understand the nature of the claim and your legal obligations as the executor of the will.
- You will need to gather all relevant documents, such as the will, any codicils (amendments to the will), and any other relevant documents that may support the validity of the will.
- You may need to obtain medical reports or other expert evidence to demonstrate that the person who made the will was of sound mind and was not under undue influence.
- You will need to prepare a response to the claim and any evidence presented by the claimant.
- The court will then consider the evidence presented by both sides and make a determination as to the validity of the will and the distribution of assets.
Defending a contested will can be a complex and emotionally challenging process. Contact our helpline to help you get a qualified legal professional to guide you through the process and represent your interests in court.
Frequently Asked
Questions
What is the difference between a will dispute and an estate dispute?
Often used interchangeably, a will dispute typically focuses on challenging the validity of the will itself or seeking different provisions under it (like a Family Provision Claim). An estate dispute can be broader, encompassing issues with the administration of the estate, executor conduct, or disagreements over specific assets, even if the will itself isn’t challenged.
What are the most common reasons for estate disputes?
Common reasons include challenges to the will’s validity (capacity, undue influence, improper signing), Family Provision Claims by eligible persons who feel inadequately provided for, disagreements over the executor’s actions or delays, and disputes about the value or distribution of specific assets like property.
Who can make a Family Provision Claim in NSW?
Eligible persons in NSW include the deceased’s spouse or de facto partner, children, former spouses, dependents (including dependent grandchildren), and persons in a close personal relationship with the deceased at the time of death. Strict criteria apply.
Do all estate disputes go to court?
No, many estate disputes are resolved through negotiation or mediation before reaching a final court hearing. Mediation is often a mandatory step in the court process.
How long do I have to start an estate dispute?
Time limits vary depending on the type of dispute. For Family Provision Claims in NSW, the claim must be filed within 12 months of the date of death. For other disputes, like challenging validity or executor conduct, different time limits may apply, and prompt action is always recommended. Seek legal advice immediately regarding specific deadlines.
NSW Wills & Estates Helpline can be contacted on 1300 679 222. Our helpline reps are well versed in all things related to Will & Estate disputes. If there is an issue we can’t answer over the phone, we have access to a mountain of resources so that we can call you back within the day to provide answers.
Due to time differences across states, we recommend leaving a voicemail if your call is not answered. We promise to return your call within the day taking note of time differences.
Our phone helpline is manned Monday to Friday, 8.30am – 5.00pm (AEST). Our Facebook social media page is manned 7 days a week and we respond to direct messages quickly. In fact, most of our enquiries come via Facebook private chat.
