Contest A Will

The law relating to the dispute, contest 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 as invalid on a range of grounds including 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.

Get in touch with us and we can determine whether you are eligible to contest a Will, what your chances of success are, and whether you will meet the time limits to bring a claim.

There are many reasons why a person might want to 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 there might be other grounds to challenge the Will
• If the deceased was incapable in some way of making a valid Will
• If the deceased was pressured or threatened to sign a Will

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.

No. You cannot make a claim for ‘family provision’ under the Succession Act 2006 (NSW). However, you are still eligible to ‘challenge’ the Will by claiming it is invalid by virtue of fraud, undue influence, mental incapacity or some other reason.

Yes, the claim for ‘family provision’ must be filed in court within 12 months of the death of the person who’s Will is being contested. The court can allow claims to be filed outside this time period if there is good reason to do so.

In your application to the Court, you may make submissions as to which aspects of the estate (such as particular items) would satisfy your application, and the Court has a broad discretion to determine which elements of the estate are distributed to whom.

This depends on a range of factors. If your claim 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.

If your claim is unsuccessful, you may consider appealing that claim to a higher court or some other ground for challenging the Will.

As long as you are (a), an eligible person and (b), you have made the claim that the Will does not provide sufficiently for the “maintenance, education or advancement in life of the eligible person”, the Court may make an order for family provision and will take into account 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 person’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 person
• whether the applicant was being maintained by the deceased 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’s death or at the time the application is being considered.

This depends on a lot of factors. It may take between 1-3 years, however, the AJB Stevens team will be able to give you more of an idea during your consultation.

Yes. As long as the beneficiary is an ‘eligible person’. This is quite common where beneficiaries do not consider that the Will provided adequate provision for them.

Sometimes. The law considers as an ‘eligible person’ for bringing such a claim, those who “at any particular time, wholly or partly dependent on” the deceased. So, if a parent was dependent on a child, then they may be eligible to make a family provision claim.

Yes. Though this may make your claim more difficult. If you wish to contest a Will, it is important to notify the Executor as soon as possible to prevent the estate from being distributed.

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 judges 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.

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.

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.