Estate disputes
Contesting a will in NSW
If you have been left out of a will, or left with far less than you needed, you may be able to apply to the Supreme Court for provision from the estate. Separately, a will can be set aside altogether where the person who made it lacked capacity or was pressured into it. These are two different claims and the difference decides everything about how yours runs.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. We act for people making claims and for executors defending estates, throughout New South Wales.
Two different claims
People use “contesting a will” for both, and the distinction gets lost. It matters, because the tests are different, the time limits are different and the outcomes are different.
| Family provision claim | Challenge to validity | |
|---|---|---|
| What you are saying | The will is valid, but it does not make adequate provision for me | This document should never have taken effect as a will at all |
| Who can bring it | Only an eligible person, as defined by statute | Anyone with an interest in the estate, including a beneficiary under an earlier will |
| Time limit | Twelve months from the date of death, with a limited power to extend | No fixed limit, but delay counts against you and is much harder after a grant has been made |
| If you succeed | The court orders provision for you out of the estate. The rest of the will stands | The will is set aside. The estate then passes under an earlier valid will, or under the intestacy rules |
Both can be run in the same matter, and sometimes are. Which one fits depends on the facts, and it is the first thing we work out with you.
The common claim
Family provision claims
This is what most people mean. The court asks whether adequate provision has been made for your proper maintenance, education or advancement in life, and if it has not, it can order provision out of the estate. It applies to estates with a will and to estates without one.
Who is eligible
- The husband or wife of the deceased at the date of death
- A person living in a de facto relationship with the deceased at the date of death
- A child of the deceased, whatever their age
- A former husband or wife
- A grandchild, or a member of the deceased’s household, who was at any time wholly or partly dependent on the deceased
- A person living with the deceased in a close personal relationship at the date of death
The first three categories are straightforward. The last three carry an additional hurdle, because the court must also be satisfied that there are factors warranting the application. Adult children are eligible as of right, but eligibility is only the threshold, and being eligible does not by itself mean a claim will succeed.
What the court weighs
There is no formula and no fixed share. The court looks at the whole picture, which includes:
- Your relationship with the deceased, and how long it lasted
- Any obligations or responsibilities the deceased owed you
- The size of the estate, and what is realistically available
- Your financial position, earning capacity, health and age, and the same for the other beneficiaries
- Any physical, intellectual or mental disability
- What you contributed to the deceased’s property or welfare, including unpaid care
- Anything the deceased provided to you during their lifetime
- Your character and conduct, and any competing claims on the estate
Notional estate, which exists only in New South Wales. If assets were moved out of the deceased’s name before death, or passed outside the will on death, the court has power in some circumstances to designate that property as notional estate and make an order against it. Property held as joint tenants, gifts made in the years before death and some superannuation payments can all be caught. It means an estate that looks empty on paper is not always empty, and it is one of the first things we check.
Challenging the validity of a will
A different argument: that the document should not operate as a will. If it is set aside, the estate passes under the previous valid will, or if there is none, under the intestacy rules. That makes it worth knowing what the earlier position was before you start, because setting a will aside does not always improve your position.
Lack of testamentary capacity
The person must have understood that they were making a will and what that means, had a general recollection of what they owned, and been able to weigh the claims of the people who might expect to benefit. A mind affected by illness, injury or medication to the point that it distorted those judgements is not a sound one. Capacity is judged at the time the will was made, and a diagnosis alone does not decide it either way.
Want of knowledge and approval
Even where there was capacity, the person must have known and approved the contents of the will. Suspicious circumstances, such as a substantial gift to the person who arranged the will, or a will signed by someone who could not read it, can shift the burden onto the person relying on the will to prove it was understood.
Undue influence
This is a higher bar than people expect. In will cases it means coercion, to the point that the will records someone else’s wishes rather than the deceased’s own. Persuasion, pressure, even sustained emotional pressure, is not enough on its own, and unlike lifetime gifts there is no presumption of undue influence to help you. It is worth running where the evidence supports it, and worth knowing early when it does not.
Fraud and forgery
A will procured by deception, or a signature that is not the deceased’s, is not a valid will. These are serious allegations that must be pleaded properly and supported by evidence, usually including a handwriting expert.
Improper execution
A will that was not signed and witnessed correctly is not formally valid, though the court has power to admit a document anyway where it is satisfied the deceased intended it to operate as their will.
Revocation
A later will, or in some cases a marriage, may have revoked the will being put forward. Divorce cancels gifts to a former spouse. These are questions of what the correct will is rather than whether a will is good.
Time limits, and why you should not wait
Twelve months for provision
A family provision claim must be brought within twelve months of the date of death. The court can extend that period where there is sufficient cause, but it is a discretion, not a right, and it is not something to rely on.
Before the grant, for validity
There is no fixed limit on a validity challenge, but the practical moment is before probate is granted. Once a grant is made you have to persuade the court to revoke it and explain the delay, which is a materially harder application.
Before the estate is distributed
Once an estate has been properly distributed, the money is gone and recovering it is difficult. An executor becomes protected after the required time has run and the notice of intended distribution has been published, so notifying the executor early protects your position.
If probate has not yet been granted, you can lodge a caveat. A probate caveat prevents a grant being made without notice to you, which buys time to investigate the will and the circumstances in which it was made. It has to be lodged before the grant issues, and it is not something to file casually, because an unjustified caveat can carry a costs consequence. Notices of intended application and grants are published on the Supreme Court’s online registry, which can be searched. If you think an application is imminent, call us.
How it runs
What a claim actually involves
Assessment
We look at the will, the size and make-up of the estate, your circumstances and the competing claims, and give you a frank view of the prospects and the likely range of outcomes before you commit to anything.
Notice to the executor
The executor is put on notice, which stops the estate being distributed out from under the claim and often opens the conversation earlier than proceedings would.
Evidence
Your affidavit sets out the relationship, your financial position and your needs. In a validity matter it also means the will file, the solicitor’s notes and the medical records from the relevant period.
Filing
Proceedings are commenced in the Supreme Court. Filing does not close off settlement and most matters continue to negotiate afterwards.
Mediation
Family provision claims are ordinarily referred to mediation, and the large majority resolve there. Mediation is private, considerably cheaper than a hearing, and it lets the family settle terms a court could not order.
Hearing
If it does not settle, the matter is heard by a judge. That is the exception rather than the rule, but the case is prepared from the outset as though it will happen, because that is what produces a sensible settlement.
What it costs, and who pays
The common belief is that the estate pays for everything regardless of the result. That is not the position, and anyone who tells you otherwise is not being straight with you.
- A successful applicant will usually have their costs paid from the estate, though not always in full
- An unsuccessful applicant can be ordered to pay their own costs and, in some cases, the executor’s costs as well
- The court can cap the costs recoverable from a small estate, which is intended to stop legal fees consuming what is being fought over
- An executor acting reasonably in defending the estate is ordinarily indemnified out of it
None of that is a reason not to bring a genuine claim. It is a reason to get a realistic assessment before you start, and to take mediation seriously when it comes. We will tell you at the outset what we think your claim is worth and what it will cost to run, and we will keep telling you as it develops.
If you are the executor
An executor has a duty to uphold the will and to defend the estate, and also a duty to act reasonably, which includes giving proper consideration to a settlement rather than fighting every claim to a hearing. Those two duties are not in conflict as often as executors fear, but getting the balance wrong is where personal costs exposure comes from.
- Do not distribute the estate once a claim has been notified, whatever pressure the beneficiaries apply
- Stay neutral between competing claimants. It is not the executor’s role to take sides in the family argument
- Preserve the will file, the solicitor’s notes and the medical records, because those documents decide validity cases
- Keep the beneficiaries informed, since they carry the commercial risk of the outcome
- Take advice early on whether the claim should be defended, compromised or mediated
We act for executors regularly and will deal with the claim so you are not negotiating with your own family. More on the executor’s role and probate.
Common questions
I was left out of the will entirely. Do I have a claim?
Possibly. Being left out is the starting point, not the answer. What matters is whether you are an eligible person, what your needs and resources are, what the estate can bear, and who else has a claim on it. Adult children who are financially comfortable can still succeed, and adult children in real need sometimes do not. Bring us the will and a picture of your circumstances and we will give you a straight assessment.
Can my parent stop me from contesting?
No. A clause purporting to prevent a claim does not work, and neither does a letter explaining why someone was left out, though that letter will be read by the court and can carry real weight. What can genuinely reduce the risk is planning during the person’s lifetime, which is a different conversation and one worth having early.
Does a claim have to go to court?
Proceedings usually have to be commenced to protect the time limit, but most claims never reach a hearing. Family provision matters are referred to mediation and the large majority settle there. Very few families end up in front of a judge.
The estate has almost nothing in it. Is there any point?
Sometimes, yes. New South Wales has notional estate provisions that can bring property back into the pool, including property that passed by survivorship and some gifts made before death. An estate that looks empty on paper is not always empty, so it is worth having someone look before you give up on it.
Mum had dementia when the will was signed. Is it invalid?
Not automatically. Capacity is judged at the moment the will was made, and people with a diagnosis can have periods where they meet the test. What decides these cases is the contemporaneous evidence: the solicitor’s file and notes, what she was asked, the medical records from around that date, and who was in the room. Preserve those documents and get advice quickly.
My sibling pressured her into changing it. Is that undue influence?
Perhaps, though the legal test is stricter than the ordinary meaning of the words. It requires coercion, so that the will expresses your sibling’s wishes rather than your mother’s. Where the evidence does not reach that, the same facts frequently support a want of knowledge and approval argument, or a family provision claim, and those may be the better path. We will tell you which one your facts actually fit.
How do I find out whether probate has been granted?
The Supreme Court’s online registry publishes notices of intended application and grants, and it can be searched. If a grant has not yet been made and you are investigating the will, a caveat can prevent one issuing without notice to you. Take advice before lodging anything, because a caveat filed without proper grounds can cost you.
Can I bring a claim if there was no will at all?
Yes. Family provision claims are not limited to estates with a will. If the intestacy rules leave you with nothing, or with less than you need, the same application is available on the same twelve month time limit. See how the intestacy rules divide an estate.
Find out where you stand
Estate disputes are rarely only about money, and they run better when someone outside the family is doing the talking. Bring us the will if you have it, or just tell us what happened. We will tell you whether there is a claim, what it is realistically worth and what it will take to run, before you commit to anything.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. There is a twelve month time limit from the date of death, so do not leave it.