Contesting A Will: Your Comprehensive Guide to Protecting Your Rights

Contesting a will is a complex legal process that involves challenging the validity or fairness of the will of a deceased person. It is a significant decision that should not be taken lightly, as it can be emotionally draining and financially costly. 

If you are a family member left out of a will or have not been adequately provided for in a will, you may need to make a family provision claim. If you are a beneficiary trying to protect your inheritance and the deceased estate from challenges, you must know your rights and responsibilities in either case.

The Grounds For Contesting a Will

The following guide is general in nature and should not be solely relied upon since each case is unique. It’s best to seek legal advice from experts such as the NSW Wills & Estates Helpline, which offers guidance and representation for family members or anyone who needs to make a family provision claim or protect their rights. 

There are several grounds upon which a will can be contested or challenged through court proceedings in Australia relying on the Succession Act. These include:

• Lack of Testamentary Capacity: 

The testator (the will-maker) must have been of sound mind and memory and had the mental capacity to make the will. If not, the will may be invalid.

• Undue Influence: 

The testator must have made the will freely and without pressure or coercion from others. The will might be invalid if the will-maker was unduly influenced or misled about their financial circumstances.

• Fraud: 

The testator must have been aware of the will’s contents and not have been deceived or misled. If they were the victim of fraud, the will may be deemed invalid.

• Invalid Execution: 

The will must have been properly signed and witnessed according to the legal requirements of the relevant state or territory. If it was not correctly executed, the will may be invalid.

• Failure to Make Adequate Provision: 

Sometimes, a person inadequately provided for in a will may have grounds for a  family provision claim. Family provision claims are based on the deceased’s moral obligation to provide for their dependents.

Time Frames For Contesting a Will

A will can be contested within six months of the grant of probate, letters of administration, or, in case of intestacy, within six months from the date of the will-maker’s death.

Who Can Contest a Will?

In NSW, an “eligible person” who can contest a will in the Supreme Court includes a spouse, de facto partners, same-sex partners, the deceased’s former spouse, and the deceased’s child. However, eligibility to contest a will varies depending on the state or territory where the deceased lived. But in general, an eligible person entitled to contest a will may fall into one of the following categories: (always seek legal advice for your particular situation):

• A spouse or former spouse.
• A child or stepchild.
• A parent or grandparent.
• A person who was financially dependent on the deceased or a member of the deceased’s household.
• A person who was in a close personal relationship and who was promised provision in the will.

The Process of Contesting a Will

The following guide sets out the process for contesting a will and applying for a family provision order, which generally involves the next five steps:

• Gathering evidence: 

The person contesting the will must gather evidence to support their claim on the deceased person’s estate. This evidence may include medical records, witness statements, or financial documents.

• Obtaining a grant of probate: 

The first step in the formal legal process is to apply for a grant of probate. This court order recognises the will’s validity and appoints the executor(s) to administer the deceased estate.

• Filing a family provision claim: 

Once a grant of probate has been granted, the person or persons contesting the will must file family provision claims with the court. This claim must set out the grounds on which the will is being contested and the relief being sought.

• Attending court hearings: 

The court will then hold hearings to hear evidence from both sides. The person contesting the will can present their case, and the executor(s) will have the chance to defend the will and the deceased’s estate.

• Making a decision: 

The court will then decide whether to uphold the deceased person’s will. If the court upholds the will, the deceased’s estate will be distributed according to the will. If the court finds that the will is invalid or unfair, it may make a family provision order or order that the will be amended or set aside altogether.

Seeking Legal Advice

Contesting the will of a deceased person is a complex legal process. Seeking legal advice from an experienced wills and estates lawyer is essential before you commence court proceedings to challenge a will on any of the grounds listed above and in family provision cases. A lawyer can advise you on your options and possible legal costs, help you gather evidence, and represent you or your family members in court.

Contact the NSW Wills & Estates Helpline Today

For advice and guidance on a challenge to a deceased estate, you need experienced estate litigation lawyers. Contact the NSW Wills & Estates Helpline today. Our phone helpline is staffed Monday through Friday from 8:30 am to 5:00 pm. Our Facebook social media page is staffed seven days a week, and our response time to direct messages is quick. Most of our enquiries come via Facebook private chat. All our contact details are here.

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Additional resources:

• The Law Council of Australia: https://www.lawcouncil.asn.au/
• The Legal Aid Commission of New South Wales: https://www.legalaid.nsw.gov.au/
• The State Trustees: https://www.statetrustees.com.au/