Challenge A Will

The law relating to the dispute or challenge of a Will is extremely complex and difficult to understand without the proper experience. As Australian family situations become more complicated, so does the law. Generally speaking, Wills can be disputed in two key ways:

• Contesting a Will
• Challenging a Will as improperly made or executed.

A Will can be ‘contested’ where you believe that a Will does not provide for you or does not provide you with a fair entitlement. Sometimes in New South Wales, this is called a ‘family provision claim’. Note, you need to be an eligible person as defined in the law to make this type of claim

A Will can also be challenged on the grounds that:

• The person signing it was mentally incapable of doing so, or
• It was signed under duress or undue influence, or
• There was fraud involved.

There are many reasons why a person might want to challenge or contest a Will. The main reasons include being left out of a Will or if a person has been unfairly provided for. If you believe this has happened to you or a loved one, then seek legal help as soon as possible.

Your legal team will help you establish:

• If you are eligible to lodge a ‘family provision’ claim
• If the Will meets legal validity requirements
• If the deceased was incapable in some way of making a valid Will
• If the deceased was pressured or threatened to sign a Will.

If there is a Will for your loved one, but the Will does not provide for you, or you believe it provides you with unfair provision, you can ‘contest’ that Will. Sometimes in New South Wales, this is called a ‘family provision’ claim. Note, you need to be an eligible person as defined in the law to make this type of claim.

Section 57 of the Succession Act 2006 (NSW) sets out strict criteria as to who is able to contest a Will under that Act. These people, in relation to the deceased, are:

• their spouse;
• their de facto partner;
• their child;
• their former spouse;
• a person
• who was, at any particular time, wholly or partly dependent on them, and
  • who is a grandchild of them or was, at that particular time or at any other time, a member of their household;
  • a person who was living in a close personal relationship with them at the time of their death.

Note that being eligible to make this claim does not mean that you will be successful. Success requires satisfying the court that there was not ‘adequate provision’ made.

Yes. If you consider that the Will does not fairly provide for you and you meet eligibility criteria as defined in the law.

The amount that you will receive will depend on your circumstances, the circumstances of the estate and anyone else who may be entitled to provision.

The court will only make an order for provision out of the estate where the court judged that it ought to be made for the “maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.” This is a discretionary exercise and the court does not have to make an order or order any particular amount.

The court will consider the following factors:

• the relationship between the applicant and the deceased, including the nature and duration of the relationship
• the nature and extent of any obligations the deceased owed to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the estate
• the nature and extent of the deceased’s estate
• the financial resources (including earning capacity) and financial needs, both present and future, of the applicant
• if the applicant is cohabiting with another person—the financial circumstances of the other person
• any physical, intellectual or mental disability of the applicant
  the age of the applicant
• any contribution (whether financial or otherwise) by the applicant to the estate of the deceased or to the welfare of them or their family
• any provision made for the applicant by the deceased, either during the deceased’s lifetime or made from the deceased’s estate
• any evidence of the intentions of the deceased, including evidence of statements made by the deceased
• whether the applicant was being maintained by the deceased person before their death
• whether any other person is liable to support the applicant
• the character and conduct of the applicant before and after the date of the death of the deceased
• the conduct of any other person before and after the date of the death of the deceased
• any relevant Aboriginal or Torres Strait Islander customary law
• any other matter, the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

Yes. Where there is no will, the situation is called ‘intestacy’ and is governed by ‘intestacy rules’ set out in the Succession Act 2006 (NSW). Under section 59(1) of that Act, you can contest the amount that you would be awarded under the intestacy rules under section 59(1) of that Act.

Yes. Under the Succession Act 2006 (NSW), you have 12 months to bring a ‘family provision’ claim, contesting that you were sufficiently provided for in the Will. This means you have 12 months to actually start the legal proceedings in a court.

If you wish to challenge the validity of a Will, there is no strict time limit for doing so. However, it is recommended that you do so before ‘probate’ is granted, or if probate has been granted, before the estate is distributed as you are less likely to succeed if that has already occurred. This is a process where the Court determines that the Will is, in fact, the final and valid Will of the deceased. The executor of the estate must apply for this within six months of the death of the deceased.

If in doubt, you should ring the court to determine if probate has been granted and, if you are considering challenging the validity of the Will, lodge a ‘probate caveat’, to stop probate being granted.

Yes, under section 58(2), the court can allow an eligible person to contest the will for lack of family provision under the Succession Act 2006. However, you will need to show the court “sufficient cause” for why you couldn’t bring your case in time. In such a case the court will always consider whether the lateness of your claim might be prejudicial to other beneficiaries of the Will.

Yes. You can challenge a will in NSW where the assets that constitute the estate are located in NSW. That is the state where probate will be granted (see section 40 of the Probate and Administration Act 1898).

Yes. You will need to engage a lawyer to challenge the will on your behalf in NSW.

This depends on a range of factors. If your challenge is successful, it is possible that the costs will be paid out of the estate, but it is not guaranteed. For more information on payment for fees, get in touch with us.

Talk with us about the possibility of challenging a will on a ‘no win, no fee’ basis.

When you work with AJB Stevens, the Family Law process could not be easier. Our top lawyers will assess your situation to ensure that you have a solid case. From here, we will look further into your situation, taking care to ensure we have all the information we need. Once all information is gathered, we will work to get you what you deserve, through negotiations. If negotiations do not work, then we will help you through the Court process.

This all depends on your case. Will and Estate claims can take anywhere from one to three years however this may take longer depending on your situation.

Your appointed AJB Stevens lawyer will be able to give you an estimate of how long things will take to progress and for you to receive entitlements, always making sure you are updated with any changes.