Frequently Asked Questions about Contested Estates

A will can be challenged for a variety of reasons, including fraud, forgery, undue influence and lack of testamentary capacity on behalf of the will-maker.

The most common reason for disputing a will is that an applicant claims that what they have been left in the will is inadequate. This is known as a family provision claim. If you would like to confidentially explore your options for challenging a will - tell us about your circumstances here. We will provide you a free assessment of your prospects of success.

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The wishes of a will-maker are certainly a key consideration when determining a family provision claim, but they are not the sole consideration. Since 1900 both Australian and New Zealand legislature and judiciary have recognised that there is an inherent moral duty owed by the will-maker to certain persons in their life. Consequently, there is a natural tension between the recognition of the importance of testamentary freedom and moral duty which a will-maker has and owes.

No.
Only certain categories of “eligible persons” may make a family provision claim on a will-maker’s estate. These include:

1. A current spouse.
2. A current de facto partner living with the will-make at the time of their passing.
3. A child of the will-maker.
4. A former spouse of the will-maker.
5. A person who was at any time living with the will-maker and was their dependent.
6. A grandchild of the will-maker
7. A person who was living in a “close personal relationship” with the will-maker and the time of their passing.

In relation to disputing the validity of a will, only a person who has an interest in the will-maker’s estate may dispute the validity of their will.

Find our if you are eligible to challenge a will. Click here to speak to one of our will dispute experts for free.

Contesting a will refers to the making of a family provision claim.

To challenge or dispute a will is to allege that the will is invalid due to, for example:

• Lack of mental capacity
• Coercion
• Undue influence
• Forgery
• Lack of knowledge and approval

There is a general time-limit of 12 months from the date of the will-maker’s passing in which an “eligible person” may make a family provision claim. Whilst it is possible to make a claim outside of this time period, sufficient cause must be demonstrated to overturn the time limit hurdle.

Will validity disputes do not have a time limit, however as with most litigation matter, it is better to act sooner rather than later. You may have difficulty enforcing a judgement in your favour if your opponents no longer possess the funds you are entitled to.

If you are out of time, or if the deadline is quickly approaching, it is important that you receive solid legal advice - quickly! Contact us now and a will dispute lawyer will immediately call you for your complimentary dispute assessment.

In will dispute proceedings, the court will consider:

• The evidence presented to create doubt of the validity of the claim
• The evidence presented in support of the validity of the will

• The size of the estate
• Your eligibility to make a claim
• The circumstances surrounding the creation and execution of the last will
• The age of the claimant
• The claimant’s character and conduct with the will-maker before and after his or her death
• Whether the deceased person owed any moral responsibly to the welfare of a claimant,
• Your financial and health circumstances, currently and in the future,
• Whether there are any reasons for your exclusion from the will,

The costs of challenging a will depend on the circumstances of the case. Like with all litigation matters, the costs will be determined by the willingness of your opponent to negotiate and by the complicating factors of the case. Will validity andfamily provision claims have the potential to settle right at the outset, but also have the potential to go to the Supreme Court for a final hearing.

To find out how much your will dispute may cost, click here for an obligation-free assessment of your case.

The dictum that “costs follow the event” represents the general idea in litigation that the unsuccessful party is responsible for payment of legal costs. However, under the National Probate and Estates Group No Win - No Fee agreement, your legal fees are payable only if we obtain a successful outcome.

Click here for a complimentary assessment to see if you qualify.

Once again, the length of time it takes to settle a will dispute will be determined by the willingness of all involved parties to settle. If parties cannot settle then the dispute must be presented before the Supreme Court of NSW at the final hearing - which can take place 6-12 months after lodging a family provision claim.

Contesting or disputing a will involves initiating Supreme Court proceedings against another party.

Currently, you are not physically required to attend court due to the Covid restrictions. Court hearings are currently taking place via video call.

If a mediation is required, it is possible that you will be required to physically attend a mediation facility.

Most often, proceedings are resolved before a final hearing, and you will not need to attend court, whether physically or electronically.

Yes. A specific section of a Will can be challenged due to: Ambiguity in a will’s phrasing, requiring the Court’s interpretations of the will-makers intentions.

Poor drafting by a solicitor or the will-maker (for example, this usually arises when a will-maker uses Will-Kits without the consultation of a solicitor).

A gift of property had already been disposed by the will-maker during his or her lifetime, and the will maker failed to amend their Will.

The will-maker failed to leave instructions in relation to his or her burial and funeral arrangements of his or her body for either religious or cultural reasons.

A successful Family Provision claim results in either:

• The other side accepting your offer; or,
• A judge ordering further provisions for you out of the estate of the will-maker.

Often, your legal costs will also be covered by the estate or your opponent.

A successful will-validity dispute results in either:

• The distributions of the estate become subject to the terms of the penultimate will; or,
• The estate will be distributed in accordance with the rules of intestacy.

No, it is not too late to challenge the validity of a will after probate has been granted, but it is best to do so beforehand.

Similarly, you may make a family provision claim after probate has been granted of the last will of the will-maker.

There are several reasons to challenge a Will in NSW:

• The Will of the deceased person does not provide you with adequate provision for the proper maintenance, education or advancement in your life
• If the will-maker signed their last will at a time that he or she lacked testamentary capacity, or if they did not know or approve the contents of the will.
• If the Will was written under duress - this usually involves the threat of some physical harm upon the will-maker by the person seeking to acquire a benefit from the Will.
• If the will-maker was coerced or subject to undue influence when signing the will.
• If you believe the will is a forgery, or that fraud is at play.

Mediation is often a compulsory component of family provision claim proceedings, but may take place before the dispute reaches a courtroom.

A mediation between the contesting party and defending party can be conducted at any time before the claim is heard before a Judge of the Supreme Court of NSW.

Most family provision claims settle during the mediation day, often due to fear of the costs involved in attending a final hearing at the Supreme Court.

Over the years, we have helped hundreds of individual clients and other law firms all over the world - it is not necessary to attend our office. We can obtain your advice over the phone and via Zoom and Skype. Whilst it is always pleasant to meet our clients face-to-face we acknowledge that vast geographical distances can make this impractical.

Speak to a solicitor right now to learn the best way forward in your matter. Schedule a callback here

If you are a will-maker hoping to reduce the chance that your will can be successfully challenged you need to urgently contact our will drafting team now!

If you are an executor and believe that someone out there will dispute the will you need to probate, contact us now to find out the best way forward.