How to challenge a will in NSW – and when you should!

‍Can you challenge a will in NSW?

Yes! There are legal avenues available for you to challenge a will in NSW. But you need to understand the reasons why you are doing it, so you can take the right steps. And that’s because the underlying reasons impact the steps to take.
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If you feel that you haven’t been adequately provided for in a loved one’s will, or that a will was made illegally, there are legal steps you can take in New South Wales. And it’s a great idea to act quickly so you understand your options, can make the right decisions and can get the best outcomes for your situation.

But challenging a will isn’t always completely straightforward. Here’s what you need to know if you’re considering challenging a will in NSW, and when you should!

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Challenging vs contesting

From a legal perspective, there is a difference between ‘challenging’ a will and ‘contesting’ a will.

• Challenging a will means that you believe that the will itself isn’t valid. This is usually because you think it was fraudulently made, wasn’t executed correctly or there’s some other reason why it’s not actually a legal will.
  

• Contesting a will is when you believe the will is valid BUT you don’t believe that you’ve been adequately provided for by the will maker, AND they are obligated to do so.
  

When you are looking to dispute a will, you need to determine the reason for doing so. Once you do, you can take the correct legal steps.
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How to challenge a will that is invalid

To challenge a will that is invalid, you first have to:

1. Determine the reason that the will is invalid.
2. Be a person who has a right to challenge the will.
3. Take the legal steps to do so as soon as possible.

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Reasons a will might be invalid

• Lack of testamentary capacity. In this situation you’re arguing that the will maker lacked the mental capacity to understand the significance or implications of the will when they executed it.
• Fraud. Here you believe the will was procured by fraudulent behaviour, for example, if the will maker was misled into making the will in a certain way.
• Undue influence. With undue influence the testator was forced or coerced to make the will in a particular way.
• Forgery. Here the will was signed by someone else who forged the will maker’s signature.
• Lack of knowledge and approval. This is a situation where the will maker didn’t know of or approve the contents of the will.
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Who can challenge a will

In order to challenge a will in NSW you must be a beneficiary or executor of the deceased in a previous will or be someone who would otherwise inherit if the will maker had died without a will. This is typically a spouse or a child of the will maker.

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Legal steps for challenging a will

To challenge a will, one party (either the party claiming the will is valid or the party claiming it is invalid) must commence a court proceeding in the Supreme Court of NSW (the Court) by filing a Statement of Claim. This sets out the reasons for the validity or invalidity of the will.

You will then be required to prepare evidence through affidavits to support your claim.

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Time limits for challenging the validity of the will

There are no time limits on challenging the validity of a will in NSW. But it’s in your best interest to do so as soon as possible, because it can be far more difficult to convince the Court to allow this once a grant of probate has been made.

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Contesting a will that doesn’t adequately provide for you

If you believe that a will is valid, but that you weren’t adequately provided for in it, then you will need to ‘contest’ the will. You do this by filing a family provision claim.

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What is a family provision claim?

A family provision claim is an application to the Court that is essentially asking for a share, or a larger share, from the estate of a person who has died.

In order to file this application, you need to be an eligible person (someone who is permitted to contest the will in NSW) and you need to not have received what you believe you were entitled to receive.
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Who is an eligible person (or who can contest a will in NSW)?

An eligible person is:

• the spouse of the deceased person at the time of their death.
• a person in a de facto relationship with the deceased person at the time of their death.
• a child of the deceased person.
• a former spouse of the deceased person.
• a person who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased or was a member of the deceased’s household.
• a person with whom the deceased person was living in a close personal relationship at the time of their death.
  

If you meet one of these criteria, then you are able to contest the will.
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How to contest a will

To contest a will you need to take the following steps:

1. First you will need to obtain a Grant of Probate of Letters of Administration before you can make a family provision claim.
2. Second, you can try to resolve the issues via mediation. This could save you lots of time, money and stress.
3. Third, you make an application for family provision in the Equity Division of the Supreme Court. You will need to file a Summons together with an Affidavit and pay a filing fee. It’s important that you don’t make a claim unless you’ve received legal advice first!

Time limits for contesting a will

Unlike with a validity challenge, in NSW a family provision claim must be started in the Court within 12 months of the will maker’s death. This means that it’s important to make a decision and take action quickly if you don’t believe you’ve been given the right share of the estate.
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Is contesting a will worth it?

In our experience, yes. First of all, the vast majority of cases (74% of cases challenged in court and 87% of those that went before a mediator) contesting a will under family provision legislation in Australia are successful. In addition, most matters will settle before a final hearing through the process of Court-ordered mediation, which can see you with a result fairly quickly.

It is important to recognise that there’s no such thing as fairness when you’re contesting a will. Everything is based on compromise. So, there are really no ‘winners or losers’. At the end of the day, it pays to be pragmatic about your matter or it could cost you more than it’s worth.

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Get early legal advice

If you find yourself in a situation where you need to challenge or contest a will seek legal advice as early as possible. Our team can help you understand your options and guide you through the legal process to get the best results from you and your family.

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