Everything You Need To Know About Wills, Contested Estates And Family Provision Claims

This article originally appeared on our sister site, Battle of Wills.

We understand that the passing of a loved one is a stressful and emotional time. Legal disputes can arise over the deceased’s wishes, only adding to this stress for all involved. It can be confusing to understand the legal technicalities and what you’re entitled to. That’s why we’ve developed this comprehensive list of frequently asked questions and answers about contested estates, Wills and Family Provision claims. 

If you have any further questions or need advice for contesting or defending a Will, please contact our Contested Wills and Estates team today.

What does it mean to “contest a Will” or “challenge a Will”?

contest a Will means to bring legal action because you have either been left out of a Will or received inadequate provision under the Will. 

Challenging a Will means to bring legal action because you believe that the Will is invalid, for example you believe the person who made the Will lacked capacity when making the Will.

I’ve been left out of a Will. What do I do first?

It is important to seek legal advice as soon as possible as there are strict time limits for bringing a claim – 12 months from the date of death in NSW. 

If you do not have a copy of the Will, we can assist you in obtaining the Will.

When can I contest a Will in NSW?

A Will can only be contested after the death of a deceased person, but within 12 months from their date of death. 

There are circumstances where claims can be made outside the 12 month time limit, but it is important to act quickly.

How to challenge / contest a Will in NSW?

To challenge or contest a Will in New South Wales you have to bring proceedings in the Supreme Court of New South Wales. In some instances, however, we are able to resolve estate disputes by negotiating with the other party or parties without the need to take the matter before the Court.

Who can contest a Will / make a family provision claim?

Each state varies as to who can contest a Will. 

In New South Wales, you can contest the Will of a deceased person if your relationship with the deceased falls under one of the following categories: 

• A spouse 

• A de facto at the time of death (including same sex relationships) 

• A child (this includes adopted children) 

• A former spouse 

• A person who is a grandchild and was dependent at any stage 

• A person who was a dependent and a member of the deceased’s persons household at any stage 

• A person who lived in a close personal relationship with the deceased at the time of their death

What are the grounds to contest a Will / make a family provision claim?

In order to make a family provision claim, you need to show that you have not been left adequate provision for your proper maintenance, education or advancement in life. Each case is determined on its particular facts, with the Court taking into account the following: 

• Any family or other relationship between the applicant and the deceased 

• The nature and extent of any obligations or responsibilities owed by the deceased to the applicant 

• The nature and extent of the deceased’s estate 

• The financial resources and needs of the applicant 

• The financial circumstances of any person the applicant is living with 

• Any physical, intellectual or mental disability of the applicant 

• The applicant’s age 

• Any contribution by the applicant to the deceased’s estate or welfare for which they were not appropriately compensated 

• Any provision made for the applicant by the deceased 

• Any evidence of testamentary intentions (i.e. in a Will or statement) of the deceased 

• Whether the applicant was being wholly or partly maintained by the deceased 

• Liability of any other person to support the applicant 

• The character and conduct of the applicant 

• The conduct of any other person 

• Any relevant Aboriginal or Torres Strait Islander customary law; and 

• Any other matter the Court considers relevant. 

How much does it cost to contest a Will?

We can act for you on a ‘no win- no fee’ basis, meaning that you will only have to pay our legal costs if you have a successful outcome to your claim. The legal costs that are involved will depend on the amount of work that is required, and at which stage the matter can be resolved. If you are successful in your claim, your costs would generally be paid out of the estate. 

After making an initial FREE assessment of your claim, we can provide you with a cost estimate for your particular matter.

How do I get a copy of a Will in NSW to see if I am a beneficiary?

Certain categories of people are eligible to receive a copy of the Will. These include: 

(a) a person named or referred to in the Will, whether as a beneficiary or not

(b) a person named or referred to in an earlier Will as a beneficiary of the deceased person

(c) the surviving spouse, de facto partner (whether of the same or the opposite sex) or child of the deceased person

(d) a parent or guardian of the deceased person 

(e) a person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate

(f) a parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate of the testator if the testator had died intestate

(g) a person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person

(h) a person committed with the management of the deceased person’s estate under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased person 

(i) an attorney under an enduring power of attorney made by the deceased person

(j) a person belonging to a class of persons prescribed by the NSW succession regulations. 

You will need to contact the executor of the Will or the person who is holding the Will (usually a law firm) and request a copy.

What is a family provision claim?

A family provision claim is a claim made by an eligible person who has been left inadequate provision under the Will (or intestacy) of a deceased person.

How long do you have to challenge a Will in NSW?

The law does not dictate a time limit to challenge the validity of a Will. 

However, it is advisable to take legal action as soon as possible and preferably before probate is granted and the estate distribution takes place, as there will be greater difficulties to making a claim if these events have occurred. 

To make a family provision claim in NSW, there is a 12 month time limit.

How much time do you have to contest a Will in NSW?

If the person died on or after 1 March 2009 you have 12 months from the date of their death contest their Will. 

Claims can be made outside the 12-month time limit only in special circumstances.

What information does the court consider in a family provision claim?

The court considers the following factors when making an order for provision to a claimant: 

1. Whether any provision you have already received is adequate for your proper maintenance, education and advancement in life. 

2. Competing claims of other eligible persons or beneficiaries. 

3. The nature and duration of your relationship with the person who has passed away. 

4. Your financial resources and earning capacity. 

5. The size of the estate. For example, you may have a very strong claim on the grounds of relationship and need, but if there is only $20,000.00 in the estate, then there is very little scope for a Court to order provision. 

6. The financial circumstances of people you cohabit with. 

7. Contributions you made, both financial and non-financial, to the person who has passed away. 

8. Any provision the deceased person made for you during their lifetime. 

9. Aboriginal or Torres Strait Islander customary law (where relevant). 

10. Certain categories of eligible persons must establish that their relationship with the deceased person was such that they ought naturally to have been a beneficiary.

What happens if the person died without a Will (intestate) and I want to make a claim?

The rule of intestacy Will apply, this means the estate will be distributed according to a descending list of people as outlined in legislation. The same process applies for making a claim as if the deceased had left a Will.

Can I challenge a Will after the estate has been distributed?

Yes, although it can be difficult to challenge a Will after distribution has been made, as recovering estate funds from various beneficiaries may prove difficult.

Can I challenge a Will before the person has died?

No, you cannot challenge a Will before a person has died. However, if you have concerns of mismanagement of a person’s assets by their attorney or if you believe the person has lost capacity and a power of attorney is required, you may like to contact the NSW Civil and Administration Tribunal for advice.

Can probate be challenged?

Yes, it is possible to challenge a Will that the Court has determined to be valid and where probate has been granted. You will need to be able to prove to the Court that the Will is not valid based on information that was not available at the time that probate was granted.

Do I need a lawyer to contest a Will / make a family provision claim?

It is not a requirement that you are legally represented to contest a Will; however, navigating the law and its requirements is complex. Our Contested Estates team at Turnbull Hill Lawyers has been recognised as leading lawyers in Estate Litigation with decades of combined experience in this area of law and are assisted by a highly skilled and dedicated support staff.

Who pays the costs in a contested Will case?

Generally, where an applicant is successful, the costs are paid out of the estate. This includes both the defendant’s (executor) costs and the plaintiff’s costs.

Can you remove the executor of a Will?

In circumstances where the executor is not administering the estate in the best interest of the beneficiaries, it is possible to apply to the Supreme Court of NSW to seek the removal of the executor and the appointment of an alternate executor.

Is mediation possible with contested Wills?

Mediation is compulsory in all family provision claims where proceedings have been commenced in the Supreme Court of New South Wales.

How long does it take for a Will to be contested?

Generally, once proceedings have been commenced with the Supreme Court of New South Wales, mediation is set down within approximately 3 months. 

Hearings dates are generally appointed within 6 to 12 months following a failed mediation.

Can the surviving spouse change a Will?

No, a surviving spouse cannot change the Will of their deceased husband or wife. Only the Court can alter a Will of a deceased person.

Do I have to challenge the full Will or can I just contest part of it?

An applicant cannot determine where their provision may “come” from. Their provision is usually taken from all the beneficiaries. 

However, if the parties settle the matter between themselves, the parties may agree between themselves to not “disturb” a particular beneficiary’s entitlement.

Can someone with power of attorney override a Will?

A power of attorney ceases on the death of the person who makes the power of attorney. A power of attorney cannot change a person’s Will.

Do I have to go to court when challenging a Will?

Only the Court has the power to decide whether a Will has or has not been validly executed, although in some instances parties can come to agreement.

How can I settle a contested Will claim in NSW?

Contested Will claims can settle either prior to commencement of court proceedings, during or after the hearing of the proceedings, but prior to judgement. 

The parties need to actively negotiate to reach an outcome, with the majority of cases settling at mediation.

How can I contest the validity of a Will?

You can contest the validity of a person’s Will on the following grounds: 

• the deceased did not have the capacity to make their Will at the time, they signed it 

• the deceased was unduly influenced 

• they did not know of or approve of the contents of their Will 

• the Will was not signed by the deceased person 

• the Will was not signed properly or interfered with after the Will was signed 

• the Will is not the deceased’s persons last Will 

• the deceased had revoked their Will in his or her lifetime 

• there are suspicious circumstances. 

Evidence will be required to establish the deceased’s Will was not valid.

How much can I get if my Will dispute is successful?

Every case is different to the next and, as a result, every outcome is different. 

Only when all evidence has been filed by all parties will we be in a position to provide you with a “range” of what a court may order if your matter proceeded to hearing.

Can I challenge a Will after probate is granted?

Yes, although it is up to the person challenging the Will to prove the Will is invalid because the Court has already “signed off” to say the Will is valid. 

Proceedings are best commenced prior to probate being granted.

What if the Will is forged?

If a deceased’s person’s Will was forged, then that is grounds for challenging the validity of the Will.

What does notional estate mean?

Notional estate is relevant in contested estate (family provision) claims. 

Notional estate are assets that do not strictly fall into the deceased’s estate. Some examples of notional estate are: 

1. Property held jointly (such as real property and bank accounts) 

2. Superannuation or life insurance 

3. Where a deceased person gave an asset away or sold it to someone for less than its value, within 3 years preceding their death. 

Where there are insufficient assets in a person’s estate but notional estate, then a person may claim against the deceased person’s notional estate.

Can I make a contested Will claim against my siblings and/or parents?

As a biological or adopted child, you can contest your parents’ Will on their deaths. 

You can only contest your sibling’s Will if you were a member of your sibling’s household and were dependent on your sibling at some stage during their lifetime. However, you also need to show reasons as to why you should be regarded as a natural object of testamentary recognition by your sibling.

Can stepchildren contest or challenge a Will?

To contest a Will as a stepchild, to prove eligibility, you need to have lived with and been dependent on the deceased person at any stage during the deceased’s person’s lifetime. 

Any person can challenge a Will, however, if you are successful in challenging the last Will of the deceased, the court usually grants probate on the last valid Will or if no last valid Will, intestacy. Therefore, you need to be satisfied that you are either a beneficiary of the last valid Will, or if no valid last Will, entitled under intestacy.

Can grandchildren contest or challenge a Will?

Grandchildren can contest a Will of a deceased person, if they prove they were dependent on their grandparent at some stage during their grandparent’s lifetime. 

Any person can challenge a Will, however, if you are successful in challenging the last Will of the deceased, the court usually grants probate on the last valid Will or if no last valid Will, intestacy. Therefore, you need to be satisfied that you are either a beneficiary of the last valid Will, or if no valid last Will, entitled under intestacy.

Can I make a claim on my deceased friend’s estate when they are not a family relation?

The first step in contesting a Will of a deceased person is to prove you are eligible. There does not need to be any family relationship, however, you must prove you were either: 

• A person who was a dependent and a member of the deceased’s persons household at any stage 

• A person who lived in a close personal relationship with the deceased at the time of their death. 

Factor’s warranting also need to be established which can be interpreted to mean why you should be regarded as a natural object of testamentary recognition by the deceased person.

Can a beneficiary contest a Will?

A beneficiary can contest a Will if: 

(a) They are eligible to do so; and 

(b) They believe adequate provision has not been made for their maintenance, education and advancement in life.

Can I claim anything that is not in the Will?

A deceased person may not specifically mention an asset in their Will but that does not mean that asset does not form part of their estate. 

All assets owned solely in the deceased’s person’s name at the time of their death are considered “claimable” when a person makes a claim against their estate.

What if I live in a different state to the deceased?

You do not need to live in the same state to claim against a deceased person’s estate. 

You do not need to instruct solicitors that live in the same state as you. 

The legislation is “state” based and so it is best to instruct a solicitor in the state where the deceased person held their assets, which will be the relevant jurisdiction when assessing your claim.

What does moral obligation mean?

This means that, according to community standards, that a person would be expected to have a duty towards a person to provide financial assistance to that person out of their estate.

Can I claim assets that are not included in the deceased person’s Will?

A deceased person may not specifically mention an asset in their Will but that does not mean that asset does not form part of their estate. 

All assets owned solely in the deceased’s person’s name at the time of their death are considered “claimable” when a person makes a claim against their estate. 

Sometimes, there may be other assets that may be “clawed” back into the estate if there are insufficient assets to make an order for provision. This is known as notional estate and can consist of superannuation, life insurance, joint property and money or property gifted by the deceased within 3 years preceding their date of death.

What can a contested Wills and probate lawyer do for me?

The law in New South Wales applying to probate and contested Wills is not easy to navigate, and the Supreme Court requires that documentation is submitted to it in a certain way. Our specialised team only works in the area of contesting and challenging Wills and can expertly advise you of your legal rights and guide you through the process of making your claim.

Can I hire a lawyer to contest a Will on a NO WIN NO FEE basis?

Yes. We provide you with a FREE assessment of your claim, and if we are of the view that your claim has good prospects, we will act for you on what is commonly known as “no win, no fee” basis. This means that you will be only pay our legal costs on the successful outcome of your claim. 

Whether you’re contesting or defending a Will or making a Family Provision Claim, Turnbull Hill Lawyers is here to help. You can be rest assured that our team will give you the best advice and ensure your claim achieves a favourable outcome. If you need more information contact Turnbull Hill Lawyers today.