Can you contest a Will after Probate?
In NSW, you can contest a Will after probate. But, you must be fast because it’s very difficult to contest a Will once the assets are gone. You should seek expert legal advice ASAP.
What is Probate?
A grant of Probate is made after a Will maker dies and the court confirms the Will is valid. This allows the Executor to carry out the terms of the Will.
How to stop a grant of Probate
If you want to contest a Will, you can file a probate caveat with the Supreme Court of NSW. This will stop a grant of Probate.
Can a grant of Probate be revoked?
When a Grant of Probate is obtained the court expects the person appointed as Executor to administer the estate properly. This means that there are certain responsibilities and duties one must fulfil if one is appointed Executor.
These duties include:
- Collecting the assets of the deceased.
- Organising funeral arrangements.
- Paying the debts owed by the deceased.
- Distributing the estate in accordance with the will.
The Executor is also required to obtain Probate and has a duty of care toward the beneficiaries.
If Executors do not carry out their duties properly, they can be removed by a court order. The court can revoke the Grant of Probate on sufficient grounds being established.
Please call us if you would like to contest a Will after Probate. It’s important to get expert legal advice.
How to contest a Will in NSW
There are 2 ways to contest a Will in NSW:
- Family Provision Claims.
- Challenge that the Will is not valid
It’s important to speak with an expert lawyer. They can advise if you’re eligible and if you have a viable claim. Heckenberg Lawyers have a very high success rate for contesting Wills.
What is a family provision claim?
You can make a family provision claim if you:
- are an ‘eligible person’, and
- have been left out of a will, or
- did not receive what you thought you were entitled to receive.
A family provision claim must be filed with the court within 12 months of the date of death (where the deceased person died on or after 1 March 2009).
You don’t need to obtain Probate or Letters of Administration before making a family provision claim.
Who can contest a Will in NSW?
Summary – The following people can contest a Will in NSW:
- Spouse
- Defacto
- Child
- Former spouse
- A person who was wholly or partly dependent on the deceased person and was a grandchild or a member of the household.
- A person who was living in a close personal relationship with the deceased.
According to the Succession Act 2006 s57, the following people may apply to the Court for a family provision order in respect of the estate of a deceased person:
- a person who was the spouse of the deceased person at the time of the deceased person’s death,
- a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
- a child of the deceased person,
- a former spouse of the deceased person,
- a person:
- who was, at any particular time, wholly or partly dependent on the deceased person, and
- who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
- a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
Did you know?
If you are a parent, sibling, step-child or former de-facto spouse, you are not considered to be an eligible person unless you are eligible under the category where you lived with the deceased and were dependent on the deceased.
Contest a Will time limit NSW
Sometimes the date of death is uncertain. In these cases, the court may determine a date or time of death that is judged to be reasonable.
If you submit your application after 12 months, you will need to show that you have sufficient cause to file a late application.
If the last day of the 12 month limit falls on a non business day, you can also seek an extension until the first business day.
How much does it cost to contest a Will in NSW?
If you sign a No Win No Fee agreement, you usually won’t pay out of pocket costs. Your lawyer will usually take their fees from the estate. But it’s very important to carefully read the No Win No Fee agreement. Hidden fees might apply. Please contact us to learn about our No Win No Fee agreement.
The success rate for contesting a Will
A report conducted in 2015 by The University of Queensland found that 74% of cases challenged in court, and 87% of those that went before a mediator, resulted in the Will being changed.
The success rate of contesting a Will depends on many factors and if you’re an ‘eligible person’. So it’s important to consult an expert Wills and Estate Planning Lawyer. Our success rate for disputing a Will is 97%. We also offer No Win No Fee for contested Wills. Please contact us for a free consultation.
Do you need a lawyer to contest a Will in NSW?
You aren’t legally required to hire a lawyer to contest a Will in NSW.
But it can help you achieve a more favourable outcome. In other words, a larger share of the estate.
Hiring a lawyer can also save time, money and stress.
We prefer settling disputed estates out of court. This is usually better for our clients.
Please book a free case assessment here. We also offer No Win No Fee.
Graeme Heckenberg is a very experienced lawyer at contesting Wills in NSW.
