Contesting a Will (Best Guide 2023 Update)

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:

(1) The following are “eligible persons” who may apply to the Court for a family provision order in respect of the estate of a deceased person:

(a) a person who was the spouse of the deceased person at the time of the deceased person‘s death,

(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person‘s death,

(c) a child of the deceased person,

(d) a former spouse of the deceased person,

(e) a person:

(i) who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii) 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,

(f) 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.

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.

Find out more here.

There is a time limit of 12 months from the date of death to submit an application with the Supreme Court of NSW if you want to contest a Will.

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.

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.

In NSW, the average cost to contest a will is about $5,000 to $10,000 if the matter stays out of court.

If the matter goes to court, the average cost to contest a will is about $20,000 – $100,000.

Most lawyers charge $300 to $850 per hour.

The average cost for a family provision claim in NSW that is finalised is about $30,000.

But, if you go to court, the cost can be more than $50,000.

Family Provision Claim

The most common reason for a Will dispute is on the basis of a Family Provision Claim. 

What is a family provision claim?

A family provision claim is an application to the Supreme Court of New South Wales for a share or a larger share from the estate of a deceased person.

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).

It is not necessary to obtain a grant of Probate or a grant of Letters of Administration before making an application for family provision.

According to the law in NSW, you have the grounds to contest a Will in the following circumstances:

1. Is the Will in question the last Will made by the deceased?

If you believe that the Will in question was not the last Will made by the deceased, you will need to find the last Will made and prove it meets all of the requirements under Section 6 of the Succession Act 2006 for it to be considered valid.

2. Was the Will executed in accordance with the requirements of the Succession Act 2006?

For a Will to be considered valid, the law requires that the Will is to be signed and witnessed in a certain way. Should these requirements not be conducted properly, the court may consider the Will to be invalid and the estate will be treated as if there was no Will (intestate).

The formal requirements for the proper execution of a Will in NSW are listed in Section 6 of the Succession Act 2006.

They include:

• A Will must be in writing, either typed or handwritten.

Writing is defined as any mode representing or reproducing words in visible form.

• A Will must be signed by the testator (the person making the Will).

It can also be signed by someone else in the presence of and at the direction of the testator. In these circumstances, there should be independent evidence of this.

• The signature must be made or acknowledged by the testator in the presence of at least two adult witnesses present at the same time.

Witnesses must be over 18 years of age and of sound mind. They should be independent, that is, they should not be beneficiaries or spouses of beneficiaries under the Will.

• At least two of the witnesses must attest (witness) and sign the Will in the presence of the testator but not necessarily in the presence of each other.

A person who cannot see and attest that a testator has signed a document may not act as a witness to a Will.

• The signature of the testator or of the person signing in the presence and at the direction of the testator must be made with the intention of executing the Will.

It is not essential that the signature is at the foot of the Will.

It’s important to consider that these requirements are not a complete list of clauses that may make a Will invalid. There are other circumstances and situations that may need to be taken into consideration.

For these reasons, it is always recommended to consult a lawyer who specialises in Wills and Estates. This will help reduce any risk of a Will dispute and the costs associated with resolving a contested Will. Need help? Contact us here.

3. Did the testator have the testamentary capacity to make the Will?

To make a valid Will, the law requires a person to have a certain mental capacity and level of understanding about what they are doing when they are making their Will. This is referred to as testamentary capacity.

In New South Wales, those under the age of 18 years are also considered to lack the necessary capacity to make a valid Will.

In order to make a valid Will in NSW, a person must be 18 years of age, be of sound mind and capable of understanding what they are doing. The person making the Will (Testator) must be capable of understanding the value and nature of their estate and be able to identify the beneficiaries who would ordinarily inherit the estate.

Mental illness, or any other disease that impairs mental function, does not automatically mean that the testator lacks the required mental capacity. Proving a lack of mental capacity in court requires medical records or the testimony of those who observed the testator at the time of making the Will.

Where a lack of testamentary capacity is proven and the Will at issue is not a valid Will, a previous Will needs to be relied on. If there is no previous Will, the deceased estate will to be distributed in accordance with the Rules of Intestacy.

In order to successfully challenge a will on the basis of lack of testamentary capacity, you need to prove:

• that the testator suffered from senility or mental illness, or a medical condition which impaired their mental capacity (this may only have been temporary in effect).
• that the testator was under the influence of drugs or alcohol at the time of writing their will.

That the testator was either ill or very elderly when they made their Will is not sufficient grounds by itself to argue a lack of testamentary capacity.

You must also satisfy the court that the testator did not, at the time they made the Will, understand:

• the true value and extent of their estate.
• who they were expected to provide for and the consequences of including or excluding eligible persons from their Will.
• how their estate and property was to be distributed.
• that they were making a Will, or the effect of making a Will

4. Was the Will altered after it was originally signed?

If you believe a Will was altered after it was originally signed, the burden of proof rests with you to prove that was the case. This is not always an easy process. It may require evidence from witnesses to the Will and handwriting experts to prove a case on this basis.

5. Was there any undue influence involved when the Will was written?

If a person uses trickery, pressure, force or fear to assist a testator when making a WIll, then undue influence is considered to have been used. Undue influence is most often perpetrated by those who stand to benefit from the Will being made.

The court will only rule on grounds of undue influence where it is satisfied the testator was coerced when making the Will and that the Will was contrary to their real intentions. Flattery and persuasion are not usually enough to be considered undue influence.

To prove undue influence can be difficult without the full details, supporting evidence and the witnesses who were present at the time the Will was made. However, the burden of proof shifts to the person accused of undue influence and they need to show they did not use trickery, pressure, force or fear to produce a Will to their benefit.

In NSW, you can contest a Will after the grant of Probate has been issued. But, you must move quickly because it’s very difficult to contest a Will once the assets are gone.

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.

Once you are satisfied that you have grounds to contest an invalid Will and that you are within the required time limit, begin by providing relevant information as it relates to the Will itself. Where possible, you should include the following information:

• Your contact details.
• Your relationship to the deceased.
• The date of death of the deceased.
• Details about the executor or executrix.
• Details about any of the beneficiaries – their names, their relationship to the deceased, their financial circumstances (if known).
• A copy of the Will itself or details about where a copy can be obtained.
• Details about Probate – has it been granted and if so, the date it was granted.
• Contact details for lawyers of the estate (if there are any).

In order for the lawyers to consider your situation appropriately, you will need to provide some information to support your claims that the Will is invalid. If you haven’t already, read through the information on this page that discusses the different reasons a Will might be considered invalid. Then, you will need to provide evidence that proves your claim. This evidence might include:

• A copy of a more recent Will.
• Names of witnesses who can testify to specific details of undue influence.
• Verified proof from a handwriting expert.
• Medical reports that show evidence of mental illness or a medical condition.

There may be other evidence you need to provide depending on why you believe the Will is invalid. In this case, you might want to discuss this with your legal representative.

Lastly, it will help your legal representative to understand how you consider yourself an “interested person”, that is, what makes you eligible to contest the Will. Were you:

1. Named in a previous Will as an Executor.
2. Named in a previous Will as a beneficiary.
3. Named in a final Will as a beneficiary.

Provide a brief summary about how you might be considered an “interested person” and therefore eligible to contest the Will. If possible, obtain a copy of the Will in which you were named.

Once you have prepared all the information mentioned in this article, speak with a specialist Will dispute lawyer who can advise you on the process and your chances of a favourable outcome. There are many different circumstances to consider when disputing a Will and without expert advice, you may be wasting your time and money. Read our section on Will Dispute Lawyers to help you work out how to get the best result.

Caveats

If a grant in common form has not yet been made, a caveat (which is a warning entered in the books of the Court Registry) can be lodged with the court. This prevents the Court from issuing a grant of probate without first notifying the person who lodged the caveat. Each type of caveat is appropriate to different circumstances.

2. Caveats seeking proof of the Will in solemn form.

These can only challenge the will on the issue of due execution, no other issue can be raised. They are used where there are concerns about forgery or doubts about whether the will was properly signed and sealed.

2. General caveats.

Used where doubts arise about the testator’s capacity to make the will, the identity of the intended beneficiary, the testator’s understanding of the content of the will or its effect, whether the deceased acted under duress or undue influence in making the will, or if there are concerns about forgery.

3. Caveats forbidding grants in respect of informal documents.

In some circumstances, the Court has the power to treat informal documents as wills even though they may not have been properly signed or witnessed. This type of caveat prevents a court from making such a grant without first hearing from the caveator regarding whether the informal documents should be granted validity.

Should an application questioning the validity of a Will proceed to hearing, the court will need to answer the following questions:

1. Is the Will in question the last Will made by the deceased?
2. Was the Will executed in accordance with the requirements of the Succession Act 2006? For example:
   • Was the Will in writing and signed by either the testator or someone else in the presence of the testator and at the direction of the testator?
   • Was the signature acknowledged by the testator in the presence of two adult witnesses?
   • Did two or more witnesses sign the Will in the presence of the testator?
   • Was the testator signature (or the person signing in the presence and at the direction of the testator) made with the intention of executing a Will?
3. Is the Will up to date or has the testator’s legal rights changed? Factors that could alter the legal rights of the testator include:
   • Divorce
   • Separation
   • Marriage
   • A significant change in their financial situation
   • The death of beneficiaries or a spouse
   • Having children or grandchildren
4. Did the testator have the testamentary capacity to make the Will?
5. Was the Will altered after it was originally signed?
6. Was there any undue influence involved when the Will was written?

It can be difficult to prove a Will is invalid in the Supreme Court. It is therefore crucial that you have relevant, accurate and detailed evidence to present in court. The evidence must address the legal criteria you are challenging.

Yes, you can contest a will without a lawyer.

But you might not achieve a favourable outcome.

Will dispute law can be quite complex.

Every case is unique and needs to be considered on its merits.

An experienced will dispute lawyer can help you get the most favourable outcome.

This can also save time, money and stress.

Please contact us for a free case assessment. We can advise if you have a viable claim.

It’s a very challenging time when a family member or loved one passes away.

This can be even more difficult if you have been left out of the Will or not adequately provided for.

You may be eligible to lodge a family provision claim.

A Family Provision Claim is an application to the Supreme Court seeking a share of the deceased’s estate.

You may have been left out of a Will or have been gifted a lesser share than other beneficiaries.

Who can make a family provision claim?

In order to make a Family Provision Claim in NSW, you must be an eligible under the Succession Act 2006 (NSW).

The following people could be eligible to contest a will in NSW:

• Spouses
• Former Spouses
• De Facto Partners
• Children
• Step Children
• Grandchildren
• Members of the deceased’s household who were dependent on the deceased
• People in close personal relationships who lived with deceased

On what ground can you make a claim?

If you’re an eligible person, you could make a family provision claim on the basis that:

• you were dependent on the deceased person;
• the share you received its not adequate for your maintenance and support;
• your relationship with the deceased began after the Will was made
• the Will is grossly unfair.

What to do if you have been left out of a Will in NSW

It’s very important to seek expert legal advice. This can save time, money and stress. It can also make a difference in the final outcome.

Please contact us to book a free case assessment.