Express Enquiry
Contesting Wills
Are you considering launching a challenge to a loved one’s will in New South Wales? Contesting a will may make you feel intimidated, but in our experience as dispute lawyers at NSW Wills & Estate Disputes Helpline, we can support and guide you through each step. We have a long history of settling will disputes in Australia. In 98 per cent of cases where beneficiaries felt it was not a valid will, they were not adequately provided for or were left out altogether, settled out of court.
Contesting a Will in NSW
If you are eligible but have not been included in the distribution of the deceased estate, you can contest a will in NSW. There are time frames for contesting a will in NSW, so you should get in touch with us as soon as possible.
Exceptions can apply to bringing a claim outside of the known time frames. Usually, eligible people have 12 months to challenge a will in NSW, and the court takes account of various factors when deciding on making a family provision order.
Who Can Contest a Will in NSW?
A person can contest a will if they are:
- A beneficiary named in the current will or one named in a previous will made by the deceased.
- Anyone who would be entitled to benefit from the estate had the person died intestate (without making a will).
Be aware of the statute of limitations on contesting a will, and if you need to talk to expert lawyers call us today at the NSW Wills & Estate Disputes Helpline on 1300 679 222.
The Family Provision Act
A person can contest a will in NSW by making a family provision claim under The Family Provision Act. This legislation protects those who have an entitlement to benefit from a will but have been either left out or not properly provided for. In NSW, family provision claims are made under the Succession Amendment (Family Provision Act) 2008. There are similar laws across other states and territories.
Who is Eligible to Make a Family Provision Claim?
Anyone listed as eligible under Section 57 of the Succession Act 2006 (NSW) can claim a family provision in NSW. If you’re not sure whether you are classed as an eligible person, contact our team of expert family provision and will dispute lawyers. Family provision claims can only be made by the following “eligible persons”:
- The husband or wife of the deceased.
- Adult children or a child of the deceased (including an adopted child, step-children or children of the deceased from de facto partners).
- A family member or someone who was living in a de facto relationship with the deceased, which includes same-sex relationships.
- A former husband or wife of the deceased.
- Someone with whom the deceased was living in a close personal relationship at the time of the deceased’s death.
- A grandchild of the deceased or someone who was at the time of the deceased’s death a member of the deceased’s household.
- Someone who was, at any time, entirely, wholly, or partly dependent on the deceased.
While siblings, parents, ex de factos and stepchildren are not officially listed, they could be considered eligible if they were financially dependent on or were living with them at the time of the person’s death.
Wills and Family Provision Claims
Eligible person Family Provision claims are made when the validity of a will is contested. Spouses or other beneficiaries or those from other eligibility categories can claim in the Supreme Court of New South Wales for a larger share.
Court Proceedings and Investigations
After submitting your family provision claim, the courts will investigate what contribution you made to the deceased’s estate and any responsibilities or obligations the deceased person may have owed you. Then a ruling will be made on the validity of your claim against the Deceased Estate. Courts usually also look into your current and historical financial circumstances.
What Are the Grounds For Contesting a Will in NSW?
Wills are typically contested or challenged in NSW on two main grounds:
- The will of the deceased should not stand since it is not legally valid either due to fraud, suspicious activity or an eligible person can prove undue influence.
A family provision claim will apply in these cases:
- Someone who is an eligible person believes the will was grossly unfair, who was left out of a loved one’s will or did not receive adequate provision.
In deciding whether a will is legally valid, the courts will seek answers to these questions:
- Is this will the last will and testament made by the will-maker?
- Was the will made concerning all legal requirements? For instance, was the will documented, signed by the deceased and witnessed by two persons not named in the will as beneficiaries?
- Was the will-maker of sound mind with the mental capacity at the time of signing and able to understand the implications of their will – i.e, did they have testamentary capacity?
- Has the will been changed in any way since the document was signed?
- Was any undue influence involved when the document was drawn up and signed by the will-maker?
Call the NSW Wills & Estate Disputes Helpline
Our team of experienced lawyers has a wealth of expertise and knowledge in all aspects of will disputes and we offer the guidance and representation you need to achieve a fair result. Contact us today at 1300 679 222.
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.
