Wills & Estates
Contesting a Will
Advice and representation on family provision claims, for people left out of a will and for executors defending one.
Being left out of a will, or left far less than you were led to expect, is rarely just a financial problem. It usually arrives with a good deal of family history attached. We will give you a straight answer on whether you have a claim worth making, and we will tell you if you don’t.
Family provision claims
In NSW, an eligible person who has not been adequately provided for can apply to the Court for provision out of an estate. Two questions decide it: whether you are an eligible person at all, and whether adequate provision was made for your proper maintenance, education or advancement in life. Both are worth testing properly before you spend money on a claim, and that is where we start.
There is generally a 12-month time limit from the date of death. The Court can extend it in limited circumstances, but do not count on that. If you are thinking about a claim, the time to ask is now.
Defending a claim, as executor
We also act for the other side. An executor has a duty to defend the estate and to hold the ring between beneficiaries (an unenviable position when the claim comes from inside the family). We act for executors through the whole of it, including at mediation, and we advise on the costs exposure, which is usually what is actually keeping you awake.
We would rather resolve it than run it
Most of these matters settle, and the great majority settle at mediation. That is almost always the better outcome for the family, to make it end sooner rather than after several years and to drastically reduce the legal costs incurred in the process. So we prefer to resolve disputes wherever we can.
Where a matter genuinely cannot be resolved, we are ready to take on the challenge of presenting your best possible case in the Supreme Court of NSW. We prepare the matter properly from the outset, on the assumption that we may have to.
Related
If you are administering the estate rather than disputing it, see deceased estates and probate. If you want to make your own will as difficult to challenge as possible, that starts with getting it properly drafted is the single best protection against a dispute later.
Contesting a will: common questions
Who can contest a will in NSW?
Not everybody can. NSW law limits family provision claims to “eligible persons”: broadly, a spouse or de facto partner, a child, a former spouse, and in some circumstances a dependant, a grandchild who was a member of the household, or a person in a close personal relationship with the deceased. Being unhappy with a will is not enough on its own: you also have to show you were not adequately provided for. The first thing we do is tell you honestly whether you are in the class of people who can bring a claim at all.
Is there a time limit to contest a will?
Yes, and it is a firm one. Generally a family provision claim must be made within 12 months of the date of death. The Court can extend that in limited circumstances, but you should never rely on it doing so. If time is short, or you think it may already have run, call us anyway rather than assuming it is too late. That assessment is worth making properly.
What does the Court actually take into account?
The Court looks at whether adequate provision was made for your proper maintenance, education or advancement in life. In weighing that, it considers matters such as your relationship with the deceased, your financial position and needs, the size of the estate, any contributions you made, the needs of the other beneficiaries, and any competing moral claims. It is a broad discretion, which is why an early, realistic view of your prospects matters far more than a confident one.
I am the executor and a claim has been made. What now?
An executor has a duty to defend the estate and to act even-handedly between beneficiaries, which is uncomfortable when the claim comes from within the family. We act for executors defending family provision claims, including at mediation and, where it cannot be resolved, in the Supreme Court of NSW. We can also advise on your position on costs, which is often the executor’s real worry.
Will it end up in court?
Most of these matters settle, and the large majority are resolved at mediation without a hearing, which is almost always better for the family and for what is left of the estate. We would much rather resolve it that way. But where a matter genuinely cannot be settled, we are prepared to present your case in the Supreme Court of NSW, and we prepare it on that basis from the start.
What will it cost?
We will talk about costs openly and early, before you commit to anything. In family provision matters the Court has a discretion as to costs, and costs are sometimes (but by no means always) paid out of the estate. Anyone who promises you a costs outcome at the first meeting is guessing, so we would rather set out the realistic range and let you make an informed decision.
Find out where you stand
Get clear, plain-English advice from an experienced Forster practice. Call us or send an enquiry, and we’ll get back to you promptly.