How to Contest a Will: The Process of Disputing a Will

Many people believe a Last Will and Testament is set in stone. So it comes as a surprise when they learn that if someone disputes or contests their will, it can be changed by the Supreme Court of NSW under the Succession Amendment (Family Provision) Act 2008, NSW.

The Family Provision Act 1982 was amended to make sure there is adequate provision for “eligible persons”, whether there was a will or not, and whether the “eligible person” was mentioned or not.

Here we will discuss the process of disputing or contesting a will in NSW.

Family Provision Orders and Will Disputes

If a family member is left out of the will of a deceased person, someone hasn’t been adequately provided for from the deceased’s estate, or they need further provision, the will can be viewed and disputed before or after a Grant of Probate is in process or completed.

Anyone deemed by the court as an “eligible person” entitled to a family provision order may be successful if the court agrees that they haven’t received proper provision, the will is invalid or unfair.

The “eligible persons”who can apply to the court to process a family provision order are:

If you were married to the deceased person before their death.
If you were living in a de facto relationship with the deceased person at the time of their death (same sex or not).
If you were a child of the deceased person.
If you were a grandchild dependent on the deceased person.
If you were a former spouse of the deceased person.

The Process of Contesting a Will

The Supreme Court of NSW interprets family provision legislation when wills are made or contested. This means the executor of a will, or a party with an interest in the estate, may apply to the court to determine what the will-maker meant when it was drawn up. Either before or after Probate is granted and a person feels the will is unfair they can apply to the court to begin the process of gaining adequate provision.

Should the family provision application be successful, the Court will make changes to the will or distribute the estate accordingly. For a successful claim under Family Provision rules, it’s best to seek the help of legal professionals before beginning court proceedings.

When and Why You Can Dispute a Will in NSW

A will can be challenged for several reasons, the most common being that someone believes the will has been tampered with, made under duress or that the will is not the most recent. Other reasons include beneficiaries believing the will is uncharacteristic of the will-maker, or they suffered a mental health problem and had no testamentary capacity to go through the process of making the will.

Wills are also contested or disputed when beneficiaries believe there were suspicious circumstances around the writing of the will, the person was tricked into writing a different will or there was undue influence.

Time Limits For Contesting a Will Apply in NSW

In NSW, you have 12 months from the date of death to lodge a Family Provision claim or to begin the legal process of disputing a will in court. In other states there are different rules and time limits so contact a lawyer to find out where you stand concerning contesting a will.

The Factors Considered in a Will Dispute in NSW

When dealing with a Family Provision claim, the court will take into account many factors including the most important one; the financial needs of the claimant. Once these have been established, the following considerations may be addressed:

The nature and extent of the deceased’s property and any estate liabilities.
Your age, conduct and character; any disability you may have, whether physical, intellectual or mental capacity and that of any other applicant or beneficiary.
Your relationship with the deceased (if you were the deceased’s partner e.g.); its length, nature and duration.
Any financial (or non-financial) contribution you made to the estate and any responsibilities or obligations the deceased had to you or any of the estate’s beneficiaries.
Any provision the deceased made for you during your lifetime or from the deceased estate, and any contribution you may have made to the deceased’s welfare.
Your earning capacity, financial needs, financial resources and present and future needs and those of other beneficiaries or applicants.
If someone is cohabiting with you, their financial circumstances will be considered.
Whether you were a former partner or were wholly or partly dependent on the deceased.
Whether the deceased provided maintenance to you in the form of financial support or other support, its extent and the basis on which the deceased did so.

The Cost of Contesting a Will

The costs and legal fees involved in the process of contesting a will vary depending on whether you are contesting the validity of the will or applying for a family provision order in the NSW Supreme Court. When contesting a will in NSW, whether it ends up in court or not, the legal costs for family provision cases can run from a few thousand dollars to tens of thousands, so it’s crucial to make sure you have a strong legal case before you commence court proceedings.

The cost will also depend on the degree of complexity of your case or how complicated it becomes, and whether you have a settlement agreement. Should your claim be successful, the estate will generally be ordered to pay the court costs.

If the Claim is Unsuccessful

Unfortunately, a successful family provision claim doesn’t always result in the court finding the estate has to pay the legal costs. In family provision claims arising from a disputed estate matter that proceeds to the court, the judge has the discretion to order legal costs and fees to whichever party he or she chooses, according to the Succession Act.

Contact the Wills & Disputes Hotline

Call us today to apply for a family provision order and to make sure your will is written up properly by professionals, lessening the chance of a dispute after you die. If you or family members wish to contest a will but you’re not sure of the process, our lawyers are will dispute experts so don’t hesitate to contact us today at 1300 679 222, email willscontesting@gmail.com, or fill in the online enquiry form here and we’ll get back to you immediately.