A will sets out how a person wishes their estate to be distributed after their death. To contest a will in NSW, you must challenge the validity of the will or make a family provision claim seeking a share, or a larger share, of the estate. The eligibility rules, evidence and time limits differ between these two types of proceedings.
This guide explains the available grounds, who may bring a claim and the steps involved. If you have concerns about a will or the provision made for you, obtain advice promptly from the Wills and Estates team at Brydens Lawyers.
The terms “contest” and “challenge” are often used interchangeably, but it is important to identify the legal basis of the dispute.
A validity challenge asks the Court to determine whether the document is legally effective as the deceased’s will. If the challenged will is found to be invalid, an earlier valid will may govern the distribution of the estate. If there is no valid will, the intestacy rules determine who inherits.
A family provision claim asks the Court to order provision for an eligible person whose proper maintenance, education or advancement in life has not been adequately provided for. It does not require the will to be declared invalid and can also be made where the deceased left no will.
In some cases, a person may challenge the validity of a will and make a family provision claim in the alternative. Your solicitor can advise which approach is appropriate.
For a family provision claim, an applicant must be an “eligible person” under section 57 of the Succession Act 2006 (NSW). The categories are:
The deceased’s spouse at the time of death.
A person who was living in a de facto relationship with the deceased at the time of death.
A child of the deceased, including an adopted child.
A former spouse of the deceased.
A person who was, at any particular time, wholly or partly dependent on the deceased and who is either a grandchild of the deceased or was, at that time or at any other time, a member of the deceased’s household.
A person who was living in a close personal relationship with the deceased at the time of death.
Eligibility does not guarantee that an order will be made. For a former spouse, a person in the dependency category or a person in a close personal relationship, the Court must also be satisfied that there are factors warranting the application.
A close personal relationship has a specific statutory meaning. It involves two adults living together, with one or both providing domestic support and personal care. A friendship alone is insufficient, and exclusions apply to certain arrangements involving paid or organisational care.
For a validity challenge, standing is determined by the person’s interest in the probate proceedings rather than the family provision eligibility categories. This may include a beneficiary under an earlier will or a person entitled on intestacy whose entitlement would be affected by the outcome.
A validity challenge may involve one or more of the following grounds.
The person making the will must have the mental capacity required to understand the act of making a will, the general extent of their property and the claims of those who might expect to benefit. A relevant mental disorder must not distort their decisions. Age or a diagnosis of dementia does not, by itself, establish incapacity. Medical records and the will drafter’s notes may be important evidence.
The will maker’s decisions must be their own. Coercion that overcomes their free will may invalidate the document. Persuasion or family disagreement alone is insufficient, and the person alleging undue influence must prove it.
A challenge may arise where a signature or document has been forged, or a deliberate deception has affected the making or contents of the will.
The will maker must know and approve of the contents of the will. Depending on the circumstances, concerns may arise where a beneficiary was involved in preparing it or where language, literacy or visual difficulties affected the will maker’s understanding.
A will must ordinarily comply with statutory signing and witnessing requirements. However, section 8 of the Succession Act allows the Court to dispense with those requirements for an informal document where the statutory test is satisfied. A defect in execution does not necessarily mean that the document cannot be admitted to probate.
Professional advice when preparing a will can help avoid uncertainty. See our articles on DIY will kits and professionally drafted wills and different types of wills.
A family provision claim is an application to the Supreme Court of New South Wales under Chapter 3 of the Succession Act 2006. The Court considers whether adequate provision has been made for the eligible applicant’s proper maintenance, education or advancement in life and, if not, what provision should be ordered.
Being excluded from a will or receiving less than expected does not, of itself, establish an entitlement to further provision. The outcome depends on the applicant’s circumstances, the estate and competing claims.
In some circumstances, property outside the estate, such as certain jointly held assets or property transferred before death, may be designated as “notional estate”. This is subject to statutory conditions and restrictions. Such property is not automatically available to satisfy a claim.
For further information, visit our contesting a will page.
A family provision application must generally be filed within 12 months of the deceased’s death. The period runs from the date of death, not the date probate is granted, and it is not necessary to wait for probate before applying. Notifying the executor or negotiating a settlement does not stop the time limit from running.
An application may be made out of time if the Court orders otherwise on sufficient cause being shown or the parties to the proceedings consent. Neither outcome should be assumed. Seek legal advice immediately if the deadline is approaching or has passed.
Validity challenges are not subject to the same 12 month family provision deadline, but delay can affect the available remedies, particularly if the estate has been distributed. If a grant has already been made, an application to revoke it may be necessary.
Before a grant is made, a person with a legitimate interest in the probate proceedings may be able to lodge a probate caveat. A caveat ordinarily remains in force for six months, but may cease earlier, including by Court order. It is not an appropriate means of securing a family provision claim merely because the applicant seeks further provision. Obtain advice before lodging a caveat, as costs consequences may arise.
The steps depend on the nature of the claim and the circumstances of the estate. A matter may involve the following stages.
Initial legal advice. Your solicitor assesses your eligibility or standing, the grounds and evidence, applicable deadlines, the estate’s likely value and the costs and risks of proceeding.
Gathering information. Relevant material may include the will and any earlier wills, details of the estate’s assets and liabilities, and information about probate. A family provision claim requires evidence of financial circumstances and needs. A validity challenge may require medical records, the will drafter’s file and witness evidence.
Notifying the estate’s representative. Your solicitor notifies the executor or administrator of the proposed claim and may seek an undertaking to preserve estate assets. Notification alone does not guarantee that distribution will be prevented. Urgent Court orders may be necessary.
Negotiation. The parties may attempt to resolve the dispute before proceedings are commenced. Negotiations should be managed so that any necessary proceedings are filed within time.
Commencing proceedings. Family provision proceedings are generally commenced by summons, supported by affidavits and other required documents. Contested probate proceedings generally proceed by statement of claim. The Court gives directions for the preparation and service of evidence.
Mediation. Unless otherwise ordered, family provision proceedings are referred to mediation at the earliest practicable time. Validity disputes are also ordinarily referred to mediation before directions for a final hearing. The parties attempt to agree on a resolution with the assistance of an independent mediator.
Final hearing. If the dispute does not settle, the Court hears the evidence, determines the claim and makes any appropriate orders, including orders about costs.
Section 60 of the Succession Act identifies matters the Court may consider when determining eligibility, whether an order should be made and the nature of any order. Relevant matters include:
The nature and duration of the applicant’s relationship with the deceased and any obligations or responsibilities owed to them.
The size and nature of the estate, together with the financial resources, earning capacity and present and future needs of the applicant and other eligible persons or beneficiaries.
The applicant’s age and any relevant physical, intellectual or mental disability.
Contributions to the estate or to the welfare of the deceased or their family, and any provision or support already received.
The deceased’s testamentary intentions, the applicant’s character and conduct, and any other relevant circumstances.
The Court assesses the adequacy of provision when it considers the application, so changes in circumstances may be relevant. Financial need is important, but the statutory test is broader than financial hardship alone. The Court does not simply redistribute the estate to give everyone an equal share.
A dispute may be resolved through negotiation or mediation. Settlement can reduce the costs and uncertainty of a hearing and allow the parties to agree on practical arrangements, including payment dates or the allocation of particular assets.
The parties should obtain advice before accepting an offer or signing settlement documents. Whether an agreement is binding depends on its terms and the circumstances in which it is reached. Court orders or approval may be required, including where a release of family provision rights is proposed. An agreement between some parties does not necessarily bind other interested persons.
Payment of legal costs from the estate is not automatic. In a successful family provision claim, the Court may order that the applicant’s costs and the estate representative’s costs be paid from the estate. The amount recoverable may differ from the fees charged by the solicitor, leaving a shortfall.
An unsuccessful applicant may have to pay their own costs and the other party’s costs. In some circumstances, the Court may make a different order, including payment from the estate, but an unsuccessful applicant should not assume that a reasonable claim will protect them from an adverse costs order. The Court may also cap recoverable costs, particularly where the estate is small.
Costs in validity disputes are also discretionary and depend on the outcome and circumstances. Your solicitor should explain the likely fees, prospects and costs risks, and provide the applicable written costs disclosure before you commit to proceedings.
Brydens Lawyers can advise on eligibility, standing, time limits, evidence and the likely costs and risks of a will dispute. We assist applicants and estate representatives with negotiations, mediation and Court proceedings.
We can also assist with making a will that clearly records your intentions and reduces avoidable uncertainty.
To discuss your circumstances, book a free initial consultation* at a legal centre or by virtual appointment. Call 1800 848 848 or contact us online. If you are considering a claim, seek advice promptly.
*Conditions apply to the free initial consultation. Fees for further advice or representation will be explained before work is undertaken.
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A person does not always need to be related to the deceased to make a family provision claim. For example, a person who satisfies the statutory dependency and household requirements, or the close personal relationship requirements, may be eligible. A friendship alone is insufficient. Standing to challenge validity is assessed separately.
A family provision claim may be brought after probate, subject to the 12 month deadline and any permitted late application. A validity challenge may require the grant to be revoked. Obtain advice promptly, especially if the estate may be distributed.
A clause or statement explaining why an eligible person was excluded does not, by itself, prevent a family provision claim. The Court may consider the deceased’s reasons when deciding the application.
The time required depends on the evidence, the complexity of the estate, the parties’ willingness to negotiate, and the Court's availability. An early settlement may resolve the matter within months, while a contested hearing can take considerably longer. Your solicitor can provide an estimate based on your circumstances.
An eligible person may make a family provision claim where the deceased died without a will, and the intestacy rules do not make adequate provision for that person.
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