Contest A Will
Contesting a will, or making a family provision claim, is when an eligible person feels that the will of the deceased person needs to be adjusted or reevaluated.
The NSW Family Provision Act is a law that provides eligible people with the right to seek a share or a greater share of a deceased person’s estate if they believe they have not been adequately provided for in the deceased person’s will. The law is designed to ensure that the deceased person’s property is distributed in a fair and equitable manner, taking into account the needs and circumstances of eligible persons.
Under the Act, eligible persons who feel that they have not been adequately provided for in the will of a deceased family member may make a claim for provision from the estate.
Why You Would Contest A Will
There are many reasons why a family member or individual will make a family provision claim in Australia.
Lack Of Testamentary Capacity
A will can be challenged if the will-maker lacked the mental capacity to understand their assets and actions when making the will.
Undue Influence
A will may be contested if a third party coerced or pressured the testator into making specific provisions in the will against their wishes.
Fraud Or Forgery
If a will was obtained by fraudulent means or forgery, it may be contested and invalidated.
Ambiguity Or Uncertainty
A will can be challenged if the terms are unclear or uncertain, and the court may have to interpret the testator’s intentions.
Failure To Meet Formal Requirements
A will may be invalidated if it doesn’t meet legal formalities such as proper signing, witnessing, and execution.
Revocation
A will can be challenged if the testator revoked it before the date of their death, and the court may have to determine which will is valid.
Family disputes
Family members may contest a will if they feel unfairly treated or left out of a will, and the court may have to balance the testator’s wishes with the family’s interests.
If you need assistance with a law relating to a will dispute, contact our NSW helpline to help you get legal services and support during the process.
How to Make a Family Provision Claim in NSW
To contest a will after probate, eligible individuals who feel that they have not been adequately provided for in the will and property of a deceased relative must follow a set of guidelines and a strict process.
Who Can Contest A Will In NSW?
Eligible persons under NSW law include spouses, siblings, de facto partners, children of the deceased including stepchildren or adopted children, those from former partners or de facto relationships, dependent grandchildren, or any individuals who were wholly or partially dependent on the deceased at any given time.
Getting Legal Advice
The next step would be to seek legal advice from a professional with expertise in family provision claims. One of our provision lawyers can assist individuals in understanding their legal rights, assess their eligibility and provide guidance throughout the process.
If You Are Unable To Reach A Settlement
If the parties involved cannot reach a settlement in the matter, court proceedings may be commenced. At the hearing, various factors will be considered, including the size and nature of the deceased’s property and estate, the relationship between the person claiming and the deceased, the financial need of the claimant, and the competing claims of other eligible persons.
Frequently Asked Questions
How To Contest A Will
After obtaining legal advice, the claimant can file a summons in the Supreme Court of NSW, setting out the basis of their claim and what provisions they seek. This claim must be served on the executor or administrator of the deceased person’s estate within three months of the deceased’s death.
Can You Contest A Will Before Death?
In New South Wales, it is not possible to contest a will before the testator’s death. The validity of a will can only be challenged after the death of the testator.
However, if you have concerns about the testator’s capacity or the circumstances surrounding the making of the will, contact us for legal advice to determine if there are any grounds to contest a will after probate is granted.
Can You Contest A Will After Distribution?
It is possible to contest a will after distribution in NSW, but there are strict time limits for doing so. The time limit for contesting a will is generally within 12 months of the date of death of the testator. However, in some circumstances, an extension of time may be granted by the court.
If the property and estate have already been distributed, and you wish to challenge the distribution, you may need to bring an action for the recovery of assets or compensation.
It’s worth noting that contesting a will after distribution can be trickier than challenging a will before distribution. This is because the assets of the estate may have already been transferred, and it may be more challenging to recover them.
What Happens If You Contest A Will And Lose?
If you contest a will in New South Wales and do not succeed, you may be responsible for paying some or all of the legal costs of the other parties involved in the case. The amount of costs you will be required to pay will depend on various factors such as the complexity of the case, the length of the proceedings, and the behaviour of the parties involved.
It’s important to keep in mind that if you contest a will and are not successful, the terms of the will are likely to be upheld, and the property and estate will be distributed according to the wishes of the testator as specified in the will.
However, if you feel that the court made an error or there were procedural irregularities during the proceedings, you may be able to appeal. It’s important to seek our legal advice before contesting a will to help you fully understand the process, potential outcomes, risks, and costs involved.
We will advise you if a claim is worth making. We act on a no win no fee basis.
Get in touch
Let us know know about your requirements
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.
