Express Enquiry
Will Disputes
The death of a family member or friend is an emotionally challenging time. Dealing with disagreements over their will or estate can add significant stress. At the NSW Wills & Disputes Helpline, our specialist lawyers understand the complexities involved in will disputes.
A will dispute arises when there is a conflict concerning a deceased person’s will or how their assets are distributed. In New South Wales, these disputes generally fall into two main categories:
- Challenges to the Will’s Validity: Questioning whether the will itself is legally sound. Learn more about Contested Wills & Challenges.
- Family Provision Claims: Seeking adequate financial provision from the estate for an eligible person who believes they were unfairly left out or inadequately provided for. Explore Family Provision Claims.
Navigating these issues requires understanding your rights, the legal grounds for a dispute, strict time limits, and the processes involved.
Understanding the Types of Will Disputes in NSW
Will disputes can stem from various concerns regarding the will document itself or the distribution outlined within it. Here’s a brief overview:
Challenging the Validity of a Will
This type of dispute questions whether the will document legally reflects the deceased’s intentions and meets legal requirements. Common grounds include:
- Lack of Testamentary Capacity: The deceased wasn’t of sound mind when making the will.
- Undue Influence: The deceased was pressured or coerced.
- Improper Execution: The will wasn’t signed or witnessed correctly under NSW law.
- Fraud or Forgery: The will was created deceptively, or the signature is fake.
- Suspicious Circumstances / Lack of Knowledge & Approval: Doubts exist whether the deceased knew and approved the will’s contents.
For a detailed explanation of these grounds, see our page on what are the grounds for contesting a will.
Family Provision Claims (Seeking Adequate Provision)
Even if a will is legally valid, certain people closely connected to the deceased can ask the Court for a share (or a larger share) of the estate if they believe the will didn’t make adequate provision for their proper maintenance, education, or advancement in life. This is known as a Family Provision Claim.
Eligibility is strictly defined by law. Find out who can make a claim and the process involved.
Other Estate Disputes
Conflicts can also arise over how the estate is being managed by the executor or trustee, or specific disagreements within families regarding inheritance.
- Learn about broader Estate Disputes & Litigation.
- Explore issues common in Family Will Disputes.
Who Can Initiate a Will Dispute?
The right to start a dispute depends on the type of challenge:
- Validity Challenges: Generally, anyone who would benefit financially if the will were declared invalid (e.g., a beneficiary under a previous will or someone entitled under intestacy rules) may have standing.
- Family Provision Claims: Only specific “eligible persons” as defined in the NSW Succession Act 2006 can apply. This typically includes spouses, children, and dependents.
Overview of the Will Dispute Process
While the exact steps vary, contesting a will generally involves:
- Seeking Legal Advice: Understanding your position, potential claim, and time limits.
- Notifying the Executor: Informing the person managing the estate of your intended claim.
- Gathering Evidence: Collecting documents and information to support your case.
- Negotiation/Mediation: Attempting to resolve the dispute out of court (often a required step). You can read more about resolving will disputes through mediation.
- Commencing Court Proceedings: Filing documents with the Supreme Court of NSW if no settlement is reached. Details on how to contest a will – the process.
Most disputes are resolved through negotiation or mediation before a final court hearing.
Critical Time Limits For Will Disputes in NSW
Strict time limits apply, and missing them can mean losing your right to claim.
- Family Provision Claims: You MUST file your application with the Court within 12 months from the date of the deceased’s death.
- Validity Challenges: While longer periods may theoretically exist for some validity claims (like fraud), practical steps (like lodging a caveat to prevent probate) often need to be taken very quickly, usually before a Grant of Probate is issued by probate lawyers.
Extensions of time are sometimes possible but are not guaranteed and require specific circumstances. It is crucial to seek legal advice as soon as possible.
Costs Involved in Will Disputes
Legal costs are an important consideration. In some cases, particularly successful Family Provision Claims where a claim was reasonably made, the court may order legal costs to be paid from the estate assets. However, this is not automatic and depends on the case specifics. Unsuccessful claimants may risk having to pay their own costs and potentially some of the estate’s costs. We may be able to assist as No Win No Fee Will Dispute Solicitors.
We offer a free initial consultation to discuss the potential merits of your case and provide information about legal costs.
How the NSW Wills & Estates Helpline Can Assist
If you’re facing a potential will dispute in NSW, our experienced lawyers can help. We provide clear advice and representation across all types of estate litigation. We can help you:
- Understand your rights and eligibility.
- Assess the strengths and weaknesses of a potential claim.
- Navigate the complex legal process.
- Gather necessary evidence.
- Represent you in negotiations, mediation, and court proceedings if required.
- Strive for a fair and efficient resolution.
Our team, based in Sydney, assists clients throughout NSW. Find expert will dispute lawyers here.
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.
