The loss of a loved one can be a deeply emotional time, and when disputes arise over their estate, it can quickly become even more stressful. If you believe you have been unfairly left out of a will, or inadequately provided for, you may have the right to contest a will in NSW. Whether you are considering making a family provision claim, challenging the validity of a will, or simply trying to understand your rights, this guide provides a clear breakdown of the grounds, process, legal time limits, and what to expect during a will dispute in New South Wales.
What Does It Mean to Contest a Will?
To contest a will means to formally challenge the terms of a deceased person’s will in the Supreme Court of NSW. The person contesting the will must show that they are eligible to make a claim and that they have not been adequately provided for from the estate. This is different from challenging a will, which usually refers to questioning the validity of the will itself. Contesting typically focuses on who should receive what, not whether the will is legally valid.
Common Reasons People Contest a Will in NSW
There are several legitimate grounds on which you can contest a will, including:
- You were left out of the will entirely
- You were given less than you believe is fair or adequate
- You were financially dependent on the deceased but not properly considered
- You believe the deceased was manipulated or coerced when creating the will
- You suspect the will was made under undue influence or fraud
- The will does not reflect a promise the deceased made to you during their lifetime
In most cases, people make a family provision claim under the Succession Act 2006 (NSW) when they believe they are entitled to a larger share of the estate than what they were left.
Who Can Contest a Will in NSW?
Only certain people can legally contest a will in New South Wales. According to the Succession Act, you must be an “eligible person” to make a claim. This includes:
- A spouse or de facto partner at the time of death
- A former spouse
- A child of the deceased, including adopted or stepchildren
- A grandchild or member of the household who was dependent on the deceased
- A person who had a close personal relationship and was financially dependent on the deceased
You must also show that you were either left out of the will or received inadequate provision for your proper maintenance, education, or advancement in life.
What Is a Family Provision Claim?
A family provision claim is the most common way to contest a will in NSW. It involves applying to the Supreme Court of NSW to seek a share (or a larger share) of a deceased person’s estate. When determining your claim, the court will consider several factors:
- Your relationship with the deceased
- Any financial support the deceased gave you during their lifetime
- Your financial needs and resources
- Your age, health, and earning capacity
- The size of the estate
- The needs of other beneficiaries
- Any promises or obligations made by the deceased
The court aims to reach a decision that is fair and reasonable to all parties involved.
What Is the Process for Contesting a Will in NSW?
Contesting a will involves several legal steps. It is important to act quickly, understand the court process, and seek legal advice from an experienced inheritance dispute lawyer. Here is a general overview of how the process works:
- Seek Legal Advice
Before taking action, you should speak with a solicitor who specialises in contesting wills in NSW. They will assess whether you are eligible, advise on the strength of your claim, and help prepare the legal documents. If you are located in Western Sydney, you may want to contact Golottas Solicitors, who can guide you through this emotionally sensitive process with empathy and professionalism. - File a Family Provision Claim
If you decide to move forward, your solicitor will file a family provision application with the Supreme Court of NSW. This includes:- A Summons (formal court application)
- An Affidavit outlining your relationship with the deceased, your financial position, and the reasons for your claim
- Evidence such as financial documents, medical records, and other supporting materials
Your claim will be served on the executor of the will and any other interested parties (such as beneficiaries).
- Mediation and Negotiation
The court will usually direct both parties to participate in mediation before proceeding to a full hearing. This is a chance to resolve the matter outside of court. During mediation:- Each party (and their legal representatives) meets with a mediator to discuss the claim
- Most disputes are resolved at this stage through a negotiated settlement
- If an agreement is reached, it can be made into binding court orders
Mediation helps reduce legal costs and emotional stress, and is encouraged wherever possible.
- Court Hearing (If Unresolved)
If no agreement is reached during mediation, the matter will proceed to a court hearing. During the hearing:- Each party will present their evidence and arguments
- Witnesses may be called, including medical professionals or financial advisors
- The court will evaluate whether proper provision was made under the will
- A judge will make a legally binding decision on how the estate should be distributed
This is a more expensive and time-consuming route, but necessary in some cases.
What Are the Time Limits for Contesting a Will in NSW?
Time is critical when contesting a will. In NSW, you generally have:
12 Months From the date of the deceased’s death to file a family provision claim. However, the court may allow a late application if you can demonstrate special circumstances, such as:
- You were unaware of the death until much later
- You were misled about your rights
- You were mentally or physically unable to act sooner
It is always best to seek legal advice as early as possible to avoid missing this strict deadline.
How Much Does It Cost to Contest a Will?
Costs can vary significantly depending on:
- The complexity of the dispute
- The size of the estate
- Whether the matter is resolved at mediation or proceeds to a hearing
- The number of parties involved
In many cases, the legal costs of a successful claim may be paid out of the estate. However, if your claim is unsuccessful, you may be required to pay your own costs and potentially the other side’s as well. It is important to weigh the financial risks and get a realistic assessment from your solicitor early on.
