Will disputes often arise when someone has passed away and the deceased’s estate must be divided among beneficiaries. Generally, a Will dispute occurs when a person challenges or contests a Will. Challenging a Will means questioning its validity; contesting a Will means claiming you are eligible to receive a greater portion of the deceased’s estate.
The Succession Act 2006 deals with New South Wales (NSW) laws pertaining to Wills. This article discusses Will disputes and challenging and contesting Wills in NSW, providing clarity on your rights, time limits, and available pathways to resolution.
What Is a Will Dispute?
Will disputes typically arise when someone challenges a Will’s validity or contests the distribution as inadequate for their needs. These disagreements among beneficiaries about the disposition of estate property are common and can emerge months or even years after death.
Challenging a Will questions whether it is legally valid in the first place. Contesting a Will, through a family provision claim, argues that whilst the Will may be valid, an eligible person deserves greater provision from the estate to meet their proper maintenance, education, or advancement needs.
Executors are responsible for carrying out the wishes of the deceased and managing the probate process. When beneficiaries suspect problems with the Will itself or believe they have been unfairly excluded, Will disputes can create significant tension between family members and executors.
Understanding the distinction between challenging and contesting determines which legal pathway you pursue and what time limits apply to your situation.
Challenging a Will in NSW: Questioning Validity
One must take into consideration the following queries before challenging a Will:
- Does the Will satisfy the formal requirements of the Succession Act 2006?
- Did the Will-maker have the testamentary capacity to make the Will?
- Was the Will altered after it was originally signed?
- Did the testator make the Will under undue influence from someone?
Not just any person can challenge a Will. In NSW, a person can challenge a valid Will only if they have standing (or the right to challenge the validity of a Will), such as:
- A person named as a beneficiary in an earlier Will
- A beneficiary in the deceased’s last Will, or
- A person who would have been a beneficiary under NSW laws, but there is no mention of them in the Will
It is crucial to note that there is no legal time limit for challenging a Will. To challenge the validity of a Will, an application should be made before a Grant of Probate has been issued. Whereas, there are strict time limits for contesting a Will through family provision claims.
Lack of Testamentary Capacity
Lack of testamentary capacity is essentially the lack of mental capacity. To prove a testator had testamentary capacity, the Court must be satisfied that the testator:
- Understood the effect of making a Will
- Was aware of the general nature and value of the estate’s costs
- Was aware of those who would have a natural claim for further provision from the deceased’s estate, and
- Was able to evaluate and discriminate between such claims
This means that the Will-maker must be mentally competent and understand the legal effects of a Will. If a person lacks the mental capacity to make a Will, the validity of that Will can be challenged. Medical records showing dementia, the effects of medication, or mental illness at the time of signing can provide critical evidence to invalidate the Will.
Consider a daughter who discovered her father signed a new Will just three days before his death whilst heavily medicated in hospital, leaving his entire estate to a carer he had known for only six weeks. Such circumstances raise serious questions about whether he truly understood what he was signing.
Undue Influence
Undue influence refers to situations where a third party pressurises the Will-maker to write the Will in a way that goes against their true wishes. Accusations of undue influence can arise if a family member or friend is believed to have unduly influenced the deceased regarding estate planning.
Undue influence includes psychological or physical threats, as well as intimidation, deceit, or blackmail . This ground commonly occurs when a third party forces the Will-maker to name them as a beneficiary.
However, persuasion is not enough to establish undue influence. Claims can be made on the grounds of undue influence if it can be proven that the deceased was coerced into making the Will. You need to provide evidence that there was coercion in certain circumstances, such as any witnesses to coercion at the signing of the Will.
Wingrove v Wingrove (1885) sets the standard for undue influence cases in Australia. Evidence may include medical records or police reports that show physical harm to the testator by a beneficiary, financial records demonstrating sudden unusual transfers of assets, or texts, letters and emails demonstrating manipulation and threats.
One case involved a son who isolated his elderly mother from other family members, controlled all her finances, restricted contact with other carers, and was present at every solicitor meeting. This pattern of coercion and control provided the evidence needed to prove undue influence.
Suspicious Circumstances
The Court also considers circumstances surrounding the making of the Will to ensure that the Will-maker indeed knew and approved of its contents.
Examples of suspicious circumstances include:
- The testator leaving their entire estate to a person unknown to the Will-maker’s family members and friends
- A significant and unexplained change in the division of the estate
- A child disinherited, but with no estrangement or change in the relationship with the Will-maker
- The Will was prepared by someone other than the deceased, or
- The Will is significantly different compared to any previous Wills drafted by the Will-maker
In cases of suspicious circumstances, the burden of proving that the Will-maker knew what they were signing falls on the person trying to uphold the validity of the Will. Dramatic unexplained changes shift the responsibility to Will defenders to prove everything was proper.
Forgery and Fraud
One must provide evidence that someone else signed the Will to challenge the validity of a Will on the grounds of forgery. Handwriting analysis, witness testimony, and circumstantial evidence (such as the Will-maker being hospitalised on the alleged signing date) can prove forgery.
Fraud includes tricks like telling the Will-maker they are signing a different document or altering the Will after it was properly signed.
Contesting a Will: Family Provision Claims in NSW
If a Will in NSW is deemed valid and legal, but a loved one or family member feels they don’t have an adequate provision and deserve more claims to the estate, they can contest a Will by making a family provision claim.
To contest a Will, you must be an eligible person, which typically includes spouses, children, and dependents. The critical aspect of family provision claims is demonstrating that the Will fails to make adequate provision for your proper maintenance, education, or advancement in life.
Who Can Make a Family Provision Claim?
To make family provision claims in NSW, a person must be listed as an eligible person under Section 57 of the Succession Act 2006 Eligible persons for a family provision application include:
- The Will-maker’s spouse at the time of their death
- The Will-maker’s de facto partner at the time of death
- The Will-maker’s children
- Any of the Will-maker’s ex-spouses
- Any person who was dependent on the Will-maker at the time of their death, and
- Any person who was living in a close personal relationship with the Will-maker when they died
All children qualify as eligible persons, including adult children, estranged children, and stepchildren who were in dependent relationships with the deceased. Former spouses can claim if they still have financial needs stemming from the relationship.
Time Limits for Contesting a Will
Eligible persons for family provision cases have twelve months to contest a Will in NSW. The time limit to contest a Will varies by state, typically ranging from 6 to 12 months after the date of death or the date probate is granted.
Time Limits by State:
| State | Time Limit | Calculated From |
|---|---|---|
| NSW | 12 months | Date of death |
| Queensland | 9 months (6 months’ notice to executor) | Date of death |
| Victoria | 6 months | Grant of probate |
In Queensland, a family provision application must be given to the executor within 6 months of the deceased’s date of death. If a claim is not lodged within the specified time limits, the executor may distribute the estate, potentially leaving no assets to claim against.
If you miss the time limit to contest a Will, you may need to obtain leave from the court to bring your application. The laws surrounding Will disputes are complex and vary from state to state in Australia.
Factors Courts Consider in Family Provision Claims
The court considers various factors in determining whether to make a family provision order . Under Section 60(2) of the Succession Act 2006, matters the Court considers include:
- The relationship between the deceased and the applicant
- If the deceased person had obligations to the applicant and other beneficiaries of the estate
- The nature and extent of the estate including any liabilities
- The mental and physical health of the applicant including any existing disabilities
- The current financial position and present and future financial requirements of the applicant and other beneficiaries
- The applicant’s age
- If the applicant contributed to the deceased’s welfare or to the improvement of the deceased estate before death
- Any evidence of the deceased’s intention to provide for the applicant, including any statements made by the deceased, and
- The applicant’s character and conduct before and after the Will-maker’s death
You may be eligible to contest a Will if you have been left out or inadequately provided for. A claimant with financial problems who has relied on the deceased’s support has stronger grounds to make a claim.
Common Reasons for Will Disputes
Exclusion or significant disparity in asset distribution sparks most Will disputes. Beneficiaries may feel betrayed when they find out that the asset distribution is not equal, or if they are not mentioned in the Will at all.
For example, siblings often decide to contest a Will if it states they will receive a lower percentage of their parent’s estate than their other relatives. In fact, a quarter of all Will disputes in Australia are in relation to additional family members like siblings or step-siblings.
Your family dynamic may mean that your Will is more likely to be contested. When a testator’s children have a history of sibling rivalry, the deceased estate often becomes the focus of this tension. The combination of grief and long-standing resentments can culminate in drawn-out court battles.
A Will might be contested if it comes to light that the testator has given certain family members an “early inheritance”. Other family members may believe these early gifts should be accounted for in the final distribution.
Blended families create particular challenges where stepchildren feel excluded, or biological children resent stepparents inheriting assets they consider “family money.”
Executor Responsibilities and Disputes
Executors must obtain a Grant of Probate from the court to begin the distribution of the estate. Executors have specific responsibilities they need to carry out, including managing the distribution of assets under the estate.
There is no legal time limit in which an executor must take action, but it is generally expected that they should act within 12 months of the death. If an executor delays the probate process for over a year, beneficiaries can apply to the Supreme Court to compel the executor to obtain a Grant of Probate.
Beneficiaries may accuse an executor of not following the Will or making unauthorised transfers of assets. Common complaints include:
- Delays obtaining a Grant of Probate by the executors
- Delays administering the estate once probate has been obtained
- Lack of information from the executor or a failure to disclose accounts
- An executor abusing their position by being dishonest about funds or attempting to buy property from the estate for themselves
If there is suspicion of unauthorised transfers by the executor, forensic accountants may be called in to review records. An executor can be removed if they are found to have mismanaged the estate or made unauthorised transactions.
How Will Disputes Are Resolved
The Supreme Court of NSW governs the jurisdiction of Will disputes and provides information on resolving them. Ways to resolve a Will dispute include:
Agreement – These are arrangements between the claimant and the executor. Will dispute lawyers can help with agreements and see if parties agree with the proposed arrangements.
Mediation– Courts require parties to undergo mediation to solve a Will dispute. The process of contesting a Will can involve negotiation or mediation before going to court. Often, mediation resolves a Will dispute instead of court proceedings, with approximately 70% of cases settling without trial.
Court hearing – The court process occurs when parties or beneficiaries continue to disagree about a Will during mediation. Judges will then make the decision as to how much each party is entitled to receive from the Will.
The time it takes to settle a Will dispute can vary, generally taking about six months for settlements out of court and around two years for a court hearing.
Costs of Contesting a Will
The cost to contest a Will can vary significantly, ranging from a few thousand dollars to over £100,000 depending on the complexity of the case and the choice of solicitors.
In family provision cases, if the claimant is successful, their legal costs are typically paid out of the estate. If a claimant is not successful in contesting a Will, they may be ordered to pay the estate’s costs as well as their own.
Some lawyers offer a “no-win, no-fee” arrangement for contesting a Will, meaning claimants do not have to pay unless they win the case. This removes the financial barrier to seeking justice for legitimate claims.
It is advisable for beneficiaries to seek legal advice when dealing with Will disputes. Early consultation with Will dispute lawyers, even before deciding to proceed, protects your options and legal rights.
Seeking Legal Advice from Expert Will Dispute Lawyers
The grounds mentioned above for challenging a Will are not exclusive. It may be challenged in other situations such as inconsistencies in the Will’s contents. Perhaps you are an eligible party or a surviving joint tenant of the deceased.
One may not always successfully challenge or contest a Will; hence, it is highly advisable to hire Will dispute lawyers to help with your legal matters.
JB Solicitors has a leading team of expert family lawyers with experience in Will disputes. We offer legal representation and specific legal advice tailored to your needs, including:
- Assessment of your eligibility and prospects of success
- Strategic advice on challenging validity or contesting for greater provision
- Evidence gathering and case preparation
- Skilled negotiation and mediation representation
- Court representation when necessary
Do you have any more enquiries? Contact us today for a confidential consultation about your Will dispute.
Frequently Asked Questions About Will Disputes
How long do I have to contest a Will in NSW?
You have 12 months from the date of death to make a family provision claim in NSW. This deadline is strict, and once the executor distributes the estate, there may be no assets left to claim against. If you miss the deadline, you will need to obtain court permission to bring a late application.
What is the difference between challenging and contesting a Will?
Challenging a Will questions whether it is legally valid due to lack of capacity, undue influence, forgery, or suspicious circumstances. Contesting a Will accepts its validity but argues you deserve a greater share through a family provision claim. Challenging has no time limit, whilst contesting must occur within 6 to 12 months depending on your state.
Can I contest a Will if I’m not mentioned in it?
Yes, if you are an “eligible person” under the Succession Act 2006. This includes spouses, de facto partners, children, former spouses, dependents, and those in close personal relationships with the deceased. Being excluded from the Will does not prevent you from making a family provision claim if you have a genuine financial need.
What evidence do I need to challenge a Will?
Evidence depends on your grounds for challenging. For lack of capacity, you need medical records, doctor statements, and witness testimony about the Will-maker’s mental state. For undue influence, you need texts, emails, financial records showing unusual transfers, and evidence of coercion or control. For suspicious circumstances, previous Wills showing dramatic unexplained changes strengthen your case.
How long does a Will dispute take to resolve?
Most Will disputes resolved through mediation take approximately six months. If your case proceeds to a contested court hearing, expect around two years from initial filing to final judgment. Early engagement with experienced Will dispute solicitors can expedite the process.
Can an executor be removed if they mismanage the estate?
Yes, an executor can be removed if they are found to have mismanaged the estate or made unauthorised transactions. If an executor delays obtaining probate for over a year, beneficiaries can apply to the Supreme Court to compel them to act. Executors who breach their fiduciary duties can face removal and potential liability.
What happens if I miss the deadline to contest a Will?
If you miss the time limit, you will need to obtain leave from the court to bring your application. Courts consider whether you have a good explanation for the delay, whether the estate has already been distributed, and whether other beneficiaries would be prejudiced. The longer you wait, the harder it becomes to obtain an extension, so early legal advice is critical.
Don’t let time limits expire on your rights. Contact JB Solicitors today for expert advice on your Will dispute. Our experienced team provides clear guidance on challenging or contesting a Will, with transparent fee structures and strategic representation tailored to your circumstances.
