Contesting a will can be an emotionally charged and legally complex process. The death of a parent is a challenging time, and discovering that their will is perceived as unfair can add to the stress and grief. If you believe that your parents’ will does not reflect their true intentions or that you have been unfairly left out, you may have grounds to contest it.

In this article, we’ll explore the general process of contesting a will in Australia, with a specific focus on the laws and procedures in New South Wales (NSW). We’ll also provide practical tips and a call to action to ensure your own estate planning is fair and legally sound.

Understanding the Grounds for Contesting a Will

Before diving into the process, it’s important to understand the grounds on which a will can be contested. Not every unfair distribution is grounds for a legal challenge. In Australia, common grounds for contesting a will include:

1. Lack of Testamentary Capacity: The will-maker (testator) must have had the mental capacity to understand the nature and effect of their decisions when making the will. If it can be shown that the testator was suffering from dementia or another condition affecting their mental capacity, the will may be invalid.
2. Undue Influence: If someone exerted undue pressure or influence over the testator, leading them to make decisions they wouldn’t have otherwise made, the will could be contested on these grounds.
3. Fraud or Forgery: If the will was forged or if the testator was deceived into signing the will, it may be contested.
4. Lack of Proper Execution: A will must meet certain legal requirements to be valid, such as being signed by the testator in the presence of two witnesses. If these requirements aren’t met, the will may be invalid.
5. Family Provision Claims: In NSW and other Australian states, certain people, including spouses, children, and dependants, may contest a will if they believe they haven’t been adequately provided for.

The Process of Contesting a Will in Australia

Contesting a will involves several steps, and the process can vary depending on the state or territory. Here’s a general overview of the process:

1. Seek Legal Advice:

The first step is to seek legal advice from a lawyer who specialises in wills and estate law. Contesting a will is a complex legal process, and it’s essential to understand your rights, the likelihood of success, and the potential costs involved.

2. Gather Evidence:

Your lawyer will help you gather evidence to support your claim. This could include medical records, witness statements, and documents showing the testator’s financial situation and relationship with beneficiaries.

3. Mediation:

In many cases, disputes over a will can be resolved through mediation, a less formal process where the parties involved try to reach an agreement with the help of a neutral third party. Mediation can save time, reduce costs, and avoid the stress of going to court.

4. Filing a Claim in Court:

If mediation is unsuccessful, you may need to file a claim in court. The specific court and procedures depend on the state or territory. In NSW, for example, claims are typically filed in the Supreme Court.

5. Court Proceedings:

If the case goes to court, both sides will present their evidence and arguments. The court will consider whether the will is valid and whether the person contesting the will has a valid claim.

6. Judgment:

The court will make a decision based on the evidence presented. If the court finds in your favour, the will may be altered or set aside, and a new distribution of the estate may be ordered.

Contesting a Will in New South Wales

In NSW, the process of contesting a will follows the general steps outlined above but with specific legal provisions and requirements unique to the state.

Family Provision Claims in NSW

One of the most common types of will contests in NSW is a family provision claim. Under the Succession Act 2006 (NSW), certain people can apply to the Supreme Court for a share (or a larger share) of the estate if they believe they have been inadequately provided for.

Eligible people include:

• The deceased’s spouse or de facto partner.

• The deceased’s children, including adopted and stepchildren.

• The deceased’s former spouse.

• A person who was financially dependent on the deceased.

• A person in a close personal relationship with the deceased at the time of death.

The court will consider various factors when deciding whether to grant a family provision order, including the applicant’s financial needs, the size of the estate, and the relationship between the applicant and the deceased.

Time Limits

In NSW, there is a strict time limit for contesting a will. You must file a family provision claim within 12 months of the date of the deceased’s death. In exceptional circumstances, the court may grant an extension, but it’s essential to act quickly to protect your rights.

Costs

Contesting a will can be expensive, particularly if the case goes to court. In NSW, the court may order that the legal costs be paid out of the estate, but this is not guaranteed. It’s important to discuss potential costs with your lawyer before proceeding.

Practical Tips for Contesting a Will

1. Act Quickly: Time limits are strict, particularly in NSW. If you believe a will is unfair, seek legal advice as soon as possible to ensure you don’t miss your opportunity to contest it.
2. Consider Mediation: Mediation can be a quicker, less expensive way to resolve disputes. It’s worth exploring this option before resorting to court.
3. Understand Your Rights: Not everyone is eligible to contest a will. Make sure you understand your legal standing before proceeding.
4. Prepare for Costs: Be aware that contesting a will can be costly. Discuss potential expenses with your lawyer and ensure you’re prepared for the financial commitment.
5. Document Everything: Gather as much evidence as possible to support your claim, including communications, financial records, and medical documents.

Protect Your Estate and Your Loved Ones

The best way to prevent disputes over your will is to ensure it is clear, fair, and legally sound. Regularly review your will to reflect changes in your family situation, financial circumstances, and relationships. If you haven’t updated your will in a while or are unsure whether it will withstand legal scrutiny, now is the time to take action.

As an experienced wills and estate lawyer, I can help you create or review your will to ensure your wishes are honoured and your loved ones are protected. Don’t leave your family to navigate the complexities of a contested will. Contact my office today to schedule a consultation and secure your estate’s future.

Contesting a will is a serious and often stressful decision, but understanding the process and your rights can help you navigate the legal challenges. By taking proactive steps in your own estate planning, you can minimise the risk of disputes and ensure your legacy is protected.

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