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Contested Wills and Estates in NSW: What You Need to Know

Writer's picture: Isabella TziolisIsabella Tziolis

When a loved one passes away, the distribution of their estate can sometimes lead to disputes among family members and other interested parties. In NSW, contesting a will or challenging the distribution of an estate is a complex legal process that requires careful consideration and expert guidance. It is important to remember that in NSW you can only make a claim contesting a will if the Testator (the person who creates a will) owned property in NSW or lived permanently in NSW at the time of their death.


Grounds for Contesting a Will:

Interested parties may challenge a will either before or after probate if they believe the will is not legally valid. In determining whether a will is valid, the Court may consider whether:


a.       The Testator had testamentary capacity to make the will;

 

b.       The will was indeed the last will made by the Testator or alternatively, whether it was altered after it was executed; or

 

c.       There was any undue influence applied to the Testator at the time of execution.


Lack of Testamentary Capacity:

The Testator must have had the mental capacity to understand the nature and effect of their will. A will may be challenged if evidence can be adduced demonstrating that the deceased, at the time of executing their will, lacked the requisite mental capacity and was thereby unfit to create the will.


Undue Influence:

The will must not have been made under any pressure or manipulation from another person. Significantly, if a person who has assisted the Testator in making the will stands to benefit greatly from its provisions, that person may be required to prove to the Court that there was no trickery, pressure, force or fear involved in the making of the will. In these instances, a court will only overturn a will on the grounds of undue influence where it is satisfied that the Testator’s mind was coerced to such an extent that the resulting will was contrary to the Testator’s instructions.


Fraud or Forgery:

The will is suspected to be fraudulent or forged. Fraud can often arise where an individual prepares a will which contains clauses that provide a benefit to the individual and arranges for the Testator to execute the will without the Testator completely understanding the content of the will. Fraud is distinct from undue influence as it is the result of misleading or deceptive conduct which results in the Testator executing a will they didn’t truly understand.


Family Provision Claims:

In addition, eligible persons may apply for a Family Provision Claim under the Succession Act 2006 (NSW) requesting a larger portion of the estate of the Testator for maintenance, education, or advancement of life. This application is able to be made whether or not the eligible person has been left entirely out of the will or if they just believe they have not received assets they are entitled to.


Who is eligible to make a Family Provision Claim?

An individual can apply for a Family Provision Claim if:


  • They fall under the definition of an eligible person pursuant to section 57(1) of the Succession Act 2006 (NSW), these being:

o   The spouse of the Testator.

o   Person living with the Testator in a de facto relationship.

o   Child of the Testator.

o   Former spouse of the Testator.

o   Person who was wholly or partly dependent on the Testator and a member of the same household.

o   Grandchild who was wholly or partly dependent on the Testator.

o   Person who was living in a close personal relationship with the Testator.


Under the Succession Act 2006 (NSW) a close personal relationship is defined as a close personal relationship (other than marriage or de facto) between two adult persons, whether or not related by family, who are living together, one of each of whom provides the other with domestic support and personal care. This care must not be provided for a fee or reward or on behalf of another person or an organisation.


Notably, section 60(2) of the Succession Act 2006 (NSW) sets out 16 matters which the court is able to consider when making its decision, which include:


  • Any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship.

  • The financial resources and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate.

  • The age of the applicant when the application is being considered.

  • The financial circumstances of the other person.


Time Limits on Contesting a Will

Under section 58 of the Succession Act 2006 (NSW) a will can be contested within 12 months of the Testator’s death and whether or not the administration of the estate of the deceased has been granted. If an application is not filed within 12 months and the other party does not consent to the late application, then leave will need to be sought from the Court to bring an ‘out of time’ application.


Considerations for Contesting a Will

When considering contesting a will, it is important to:


  • Seek legal advice from a qualified lawyer.


  • Gather evidence to support your claim, including financial records or documentation of your relationship with the deceased.


  • Consider the size of the estate and the potential impact on other beneficiaries.


  • Consider the emotional and financial impacts associated with contesting a will.


Contesting a will can be a complex and emotionally challenging process. It is essential seek professional advice at the outset of your dispute to understand your options and be guided through the process.



 


Profile of Sally Westlake, BlackBay Lawyers Associate.

ABOUT THE AUTHOR


Isabella Tziolis assists as a paralegal in commercial, defamation, employment and general matters and is committed to supporting BlackBay Lawyers mission of delivering exceptional legal services. Her work focuses on assisting in providing comprehensive legal support, conducting extensive research, and offering strategic guidance to clients.

 

Isabella is currently studying a Bachelor of Laws and a Bachelor of Arts, majoring in Politics and International Relations at the University of New South Wales. Her academic and professional experience has fostered her high attention to detail and strong analytical skills which allows her to efficiently handle high-pressure situations and contribute to effective legal strategies.


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