Contesting a Will
Compassionately Fighting for What’s Just
Your Lawyers for Contesting Wills
The passing of a family member or loved one is an emotionally painful time … yet you may have to quickly consider the prospect of challenging or contesting a Will. A Will contest occurs if you feel that you have been insufficiently provided for by the deceased … a Will challenge is when you question its legal validity.
It may perhaps feel inappropriate, disrespectful, or self-serving to question the supposed wishes of the deceased with a Will dispute. Yet, you need to be sure that the Will is fair to you and others … and that it was written in a clear, lucid, and unpressured state of mind.
Speaking to an experienced contest a Will lawyer can help you understand your rights, weigh up your options, and take action if needed.
Falzon Legal will navigate you compassionately and considerately through the entire process … both acting relentlessly to achieve a just and fair outcome while providing a reassuring service that alleviates the heartache.
What Does Contesting a Will in NSW Mean?
When you contest a Will in NSW, you accept the document is valid, but believe that you have been incorrectly left out of the document. Or, if included, consider that you’ve been treated unreasonably.
So, what happens when a Will is contested is that a person makes a Family Provision Claim … where, under the laws set out in the Succession Act 2006 NSW, you state you have been inadequately provided for by the deceased and ask for more assistance.
Who Can Contest a Will?
The people permitted to contest a Will are termed in law as eligible persons. This definition appears in Section 57 of the Succession Act NSW. It states that when the deceased passed away, in order to be classed as an eligible person, you must have been one of the following:
- Spouse of the deceased.
- Former spouse of the deceased.
- De facto partner of the deceased.
- Children of the deceased.
- People who were dependent on the deceased and also a member of their household.
- Grandchildren of the deceased – if they were dependent on the deceased.
- A person with a very close relationship with the deceased and living under the same roof.
- If you have been abused and suffered damage from the deceased.
The rules about relationship status, an eligible person, and the process of how to contest a Will in NSW are complicated. An experienced and compassionate contest a Will lawyer, such as Falzon Legal, can help you understand if you qualify, and how best to present your case.
How Long Do You Have To Contest a Will in NSW?
If there’s any ambiguity surrounding the actual death date and time … the court will establish what it considers to be a reasonable date. That said, the applicant can request that the court increase this time frame … but this is not always successful.
For an extension to be agreed, the court requires satisfaction that the claimant has a genuine and applicable reason for delay … or that all involved parties consent and agree to the postponement.
The court, in deciding whether to agree to a Family Provision Claim, will look at numerous factors. Although, the most important are whether the Will has been granted Probate and if the estate has already been divided among beneficiaries.
It’s, therefore, crucial to speak to Falzon Legal, contesting a Will solicitors, as soon as possible. Any delay can mean the difference between a successful or fruitless claim.
Don’t Lose Your Opportunity To Claim
What Does It Mean To Challenge a Will?
Challenging a Will occurs when you question the actual validity of a Last Will and Testament. This may be because you consider that the Testator … i.e. the person writing the Will … prepared the document incorrectly, was not in a sound state of mind, or was pressured/coerced in its creation.
Who Can Challenge a Will?
Generally speaking, there’s a broad spectrum of people who can challenge the validity and or/authenticity of a Will in NSW … all they require is a valid interest in the estate. This is usually:
- Beneficiaries who are named in the current Will.
- Beneficiaries who were previously named in an earlier version of the Will.
- People who would, if the Will did not exist, be entitled to a share of the estate through intestacy … usually, the next of kin.
Challenging a Will after Probate has been granted … that is, a court declaring the document’s legality … is possible. However, if the Executor is already in the process of allocating assets and investments, it can make the challenge’s success incredibly problematic.
What Are the Grounds for Challenging a Will in NSW
Most typically, there are four key justifications for which you would challenge a Will:
- Undue Influence – when you believe that the deceased was pressured or coerced into making or changing their Will … against their actual wishes. You need to show that the influence was so powerful, the alleged perpetrator’s desires were followed, not the deceased’s.
- Lack of Testamentary Capacity – pursued when you feel that the deceased lacked the mental alertness to write the Will, understand the assets they had, its legal implications, and/or to whom they intended to be beneficiaries.
- Fraud or Forgery – perhaps the most serious grounds, when you state that the Will is completely made up, or that it’s been changed by someone other than the deceased.
- Statutory compliance – used when you believe the Will was not executed following legal requirements … such as not being signed by the deceased in the presence of two independent witnesses, who must also sign the document, and in the same pen.
With immense understanding and consideration, Falzon Legal can examine the circumstances surrounding the Will’s creation and your own concerns and suspicions to examine the validity of the Will.
The Time Limit for Challenging a Will
While contesting a Will must be done within 12 months of the Will-writer’s passing, there’s no regulatory time limit for challenges in NSW:
Lack of Statutory Deadline
Since there is no statutory deadline, you can challenge the validity of the Will whenever you want. Challenging a Will after Probate is granted, and the Executor has begun to distribute the estate, is possible.
Delaying Means Problems
While taking your time is permissible, it doesn’t mean it’s practical. If the Executor has already given assets to beneficiaries, reversing the process is legally expensive and very difficult.
Importance of Immediate Action
If you’re thinking about a challenge, speak to Falzon Legal as soon as possible. If necessary and suitable, we can lodge Probate Caveats to prevent the Executor from allocating assets and cash, defending your interests until the matter is concluded.
Feel You Have Grounds for Challenging a Will?
How the Court Decides Will Disputes
How a Court Decides a Will Contest (Family Provision Claim)
If a Will is considered to be valid, but an eligible person believes they have been insufficiently provided for by the deceased, the Court examines evidence to see if there is, or is not, adequate provision.
The evidence needed to contest a Will by the court includes:
- Your financial needs and circumstances.
- Your health.
- The size of the recently passed’s estate
- Your relationship with the Will-writer.
- If the deceased had any obligations or moral duty towards you.
- Other beneficiaries’ claims.
- Payments you made for the deceased’s wellbeing while they were alive, or to their estate.
How a Court Decides a Will Challenge
When you’re challenging a Will, you’re stating that the document isn’t legally enforceable … and therefore, should be disregarded. This means that the Court must examine evidence relating to the nature of the challenge, whether that’s Testamentary Capacity, undue influence, statutory compliance, or forgery.
- Testamentary capacity – if someone is challenging a Will due to lack of mental capacity, the court examines if the deceased understood what they were doing when they made the Will. This includes grasping what a Will is, its implications, the assets they had, and who will benefit.
- Undue influence – is there any proof that the Will wasn’t made freely, and instead was created by coercion, through the Will-maker being manipulated, or pressured?
- Fraud or forgery – is the Will genuine? Has it been changed by anyone other than the deceased, and is it the most recent version of the Will?
- Statutory compliance – checking that the Will was signed by both the Will-maker and witness, at the same time in each other’s presence, and in the same pen.
Alternatives to Court
At Falzon Legal, we tirelessly work to find a peaceful resolution … through thoughtful negotiation, mediation, and settlement.
Negotiation
When parties sit down and negotiate clearly and calmly … maybe with the support of legal representatives … disputes can be fixed. Honest and early talks, when pursued with respect and understanding, can often result in a fair result that prevents long and worrying conflicts.
Mediation
This route is a more structured and formal negotiation process, where a completely independent mediator works to reach a suitable agreement for all parties. Everyone has their chance to speak and look at different solutions … avoiding the uncertain outcomes of court hearings.
Settlement
A settlement agreement is a legally binding resolution that’s made out of the court. Sometimes, it is formalised after the negotiation or mediation through a Consent Order … giving all sides certainty and closure.
Why Choose Falzon Legal as Your Contest a Will Lawyers in Sydney
But with Falzon Legal, solicitors specialising in contesting Wills, you have a calm and understanding ally on your side.
Dedicated Experience in Estate Litigation
With compassion and sensitivity, our experienced solicitors have the deep knowledge required to successfully achieve the best possible outcomes when contesting or challenging Wills.
Balanced Approach
Whether we’re fighting for fair provision, questioning the validity of a Will, or defending a loved one’s final wishes … we bring the same level of understanding, support, and legal skill.
Local Expertise
Proudly based in Parramatta, we know the importance of face-to-face interaction and personal relationships. Providing services across Sydney, we guide you with consideration, empathy, and honesty.
FAQs About Contesting or Challenging a Will
Can a Will Be Contested After Probate?
Yes! Contesting Wills in NSW is possible after the Supreme Court has permitted Probate. However, challenging a Will after probate is granted demands rapid action by you, particularly if the Executor has already begun distributing the estate.
Can a Sibling Contest a Will?
Generally speaking, no. Being a sister or brother of the deceased doesn’t automatically entitle you to contest a Will as an eligible person. That is, unless you can prove that you were partly or wholly dependent on the recently passed, and you were a member of their household.
Can Grandchildren Contest a Will?
Yes. A grandchild can contest a Will, if they can show that they were wholly or partly dependent on the deceased and lived in their home.
Are There Unsuccessful Cases of Contesting a Will?
Yes, it happens. While the success rate of contesting a Will in NSW is high at 76 percent, cases can still fail. This is often because the claimant can’t show that they need more provision from the Will or that the recently passed had no moral obligation to support them.
For example, they might be an estranged spouse, be quite wealthy already, or the estate is too modest to provide for them.
What Is the Cost of Contesting a Will
This can vary. It depends on numerous factors such as the complexity of the case, how long it goes on, whether it’s sorted out through mediation or Court action, and the size of the estate. Sometimes, all legal fees can be paid by the estate … but that’s not guaranteed.
Can an Executor Contest a Will?
If they are an eligible person, they can indeed contest a Will. However, they are not allowed to remain in their position as an Executor … they must step down. Since it’s the role of the Executor to defend against contests, they can’t both claim and defend.
Can Anyone Contest a Will?
No, the rules are very strict. Only those people stated to be eligible persons in the Succession Act 2006 can mount a contest. This small group is limited to people such as spouses, children, former spouses, and dependents.
Can a Beneficiary Contest a Will?
Yes, if the beneficiary is an eligible person, and they feel that their inheritance was insufficient for their proper maintenance and advancement in life, they may contest.
Can I Contest a Will if I Am Not a Beneficiary?
Yes! If you’re not named in the Will, but you are an eligible person (a spouse, child, former spouse, etc.), you can contest a Will. In fact, being omitted from the Will can be a reason to contest, if you believe that the deceased had a moral obligation to provide for you, and did not.
Can a Half Sibling Contest a Will?
Being a blood relation of the deceased doesn’t automatically entitle you to contest a Will. To be eligible, you have to prove you were dependent (partly or wholly) on the recently passed, and you were a member of their household.
Who Pays Legal Costs When Contesting a Will?
Typically, the legal costs for both parties are paid from the deceased’s estate. But, should the judge think that the contest is unreasonable or being made just to cause trouble, the court may say the claimant must pay their own expenses.
Can You Contest a Will Before Probate?
This is the best scenario. Contesting a Will before Probate can mean that caveats can be lodged, which prevent assets from being distributed until the contest is settled.
How Long After Death Can You Contest a Will?
Family Provision Claim contests must be filed with the Supreme Court of NSW inside 12 months of the deceased’s death. Extensions are possible, but rarely granted except under exceptional circumstances.
And, how long do you have to challenge a Will? There’s no statutory time limit, although the sooner you act, the greater the likelihood of success.
Can I Contest a Will Without a Solicitor?
Of course, you can represent yourself. However, since Will disputes tend to be extremely complex, based on detailed laws and regulations, and demand powerful evidence … doing it yourself without a solicitor is unlikely to be successful.
Can You Contest a Will Before Someone Dies?
Definitely not. A Will has no legal power until the Will-maker passes on.
Who Pays To Challenge a Will?
The person challenging the Will normally pays their own legal expenses. If the challenge is successful, the court may allow the estate to reimburse the challenger’s costs … but this isn’t set in stone.
Can a Daughter-in-Law Contest a Will?
Typically, no. Just being a daughter-in-law doesn’t make someone an eligible person and entitled to claim. A daughter-in-law could only make a contest if she was part of the deceased’s household and was wholly or partly dependent on them.
What’s the Difference Between Contesting and Challenging a Will?
Challenging a Will means you’re questioning the Will’s validity … thinking it’s a forgery, created under duress, or incorrectly executed. Contesting a Will means you agree the Will is real, but say that your inheritance isn’t enough … known as inadequate provision.
Can I Contest if I Was Left Out of the Will?
Yes, being left out of the Will is one of the reasons why people mount a contest. As long as you’re an eligible person, you can ask the court for more support based on being inadequately provided for.
What Are the Costs of Challenging a Will?
The costs vary. Money is usually spent on legal fees, expert reports, and court appearances. If you win, then it’s possible your costs could be paid by the estate, but that might not happen.
Do I Need a Contest a Will Lawyer for Mediation?
It’s highly recommended. Since mediation is a formal process, having lawyers for contesting Wills and the mediation process means you have legal experts who can tackle the complex matters and assist with presenting evidence … increasing your chances of success.
Have More Questions About Will Contests and Challenges?
Get Expert Help With Contesting a Will Today
Falzon Legal brings reassurance and comfort during these difficult moments.
With genuine care and compassion … and backed by years of experience in estate litigation … we strive for resolution, fairness, and justice.