How to Challenge a Will in NSW

There are two ways to challenge a will in NSW, and the process is different for each. Challenging the validity of a will means arguing something is wrong with the will itself - for example, a later valid will exists, the deceased lacked mental capacity when the will was made, or someone pressured them into making it the way they did. A family provision claim is different. The claimant is not saying the will is invalid - they are saying they were left out of the will, or not adequately provided for, and they want the Court to award them a greater share of the estate than the will gives them.

How do you make a family provision claim in NSW?

Two things decide whether you can make a family provision claim: timing and eligibility. In NSW you have 12 months from the date of death to make a claim - in some other states the limit is six months - and the Succession Act 2006 (NSW) sets out who can make a family provision claim.

Even with 12 months available, it pays to act soon after the death. If a claim is made after some or all of the deceased’s assets have already been distributed, it can be difficult to recover those assets to pay a successful claimant. If you are an eligible person and still within time, the first step is to meet with a solicitor so your claim can be properly assessed before going further.

Your solicitor will usually contact the executor of the estate first, letting them know you intend to make a family provision claim. That opens the door to negotiation before any court involvement. Only if negotiation fails would your solicitor file a family provision application with the Supreme Court - and even then, compulsory mediation happens before the court hears the case. Many family provision claims are resolved at mediation rather than at a final hearing, though this varies with the matter. Mediation involves your legal team and the estate’s, and you only need to attend a court hearing if mediation fails.

How do you challenge the validity of a will in NSW?

Unlike a family provision claim, there is no time limit for challenging the validity of a will in NSW. You must, however, have standing. That means you must either:

• have been named as a beneficiary in an earlier will
• be a beneficiary in the deceased’s last will, or
• be someone who would be considered a beneficiary under NSW law if the deceased did not have a will (an intestacy).

‘Standing’ simply means you have an interest, or are sufficiently interested, in the outcome of the estate. For example, a claimant might say: “I received half of the deceased’s estate under the previous will, but nothing under the current will. I have good reasons for thinking the current will was made when the deceased lacked mental capacity. It is not valid - the previous will is.”

As with family provision claims, it is best to work with a solicitor when challenging the validity of a will. Aside from confirming you have grounds supported by evidence, your solicitor will first check whether Probate has already been granted. Even though there is no time limit, it is often better to challenge a will before the grant of Probate is made.

If Probate has not been granted, your solicitor can file a Probate Caveat to prevent a grant. That gives both parties room to discuss the matter and, ideally, reach agreement on the validity of the will so the caveat can be lifted. If that fails, the party claiming the will is valid files a Statement of Claim with the Supreme Court of NSW, explaining why they believe the will is valid. The defendant then files a Defence to the Claim, setting out the reasons for believing the will is not valid. Both parties prepare and file affidavit evidence, and a Judge considers it all before making a decision.

Challenging the validity of a will and making a family provision claim are both complex matters, and they can be emotionally taxing too. That is why it helps to work with a solicitor experienced in contested wills from the earliest stages and as the matter proceeds.