The process for challenging or contesting a Will in NSW differs slightly depending on the reason for the challenge. Challenging the validity of a Will involves different steps to those followed for making a Family Provision Claim, so it is necessary to look at them separately.
Broadly speaking, challenging the validity of a Will happens when someone thinks that there is something ‘wrong’ with the Will – for example the person challenging says there is a later Will that is valid; the deceased lacked mental capacity when they made the Will or were pressurised by someone else to make the Will the way they did so it shouldn’t be considered valid. Making a Family Provision Claim is different – here the applicant is not necessarily saying there is something wrong with the Will, but is saying they were either left out of the Will or were not adequately provided for in the Will and they want the Court to award them a greater share of the deceased’s estate than they get under the Will in question.
How to Make a Family Provision Claim in NSW
Two crucial factors to remember when considering making a Family Provision Claim are timing and eligibility. In some states the time limit for starting a Family Provision Claim is six months, but in New South Wales you have 12 months from the date of death to make a claim. Additionally, the Succession Act 2006 (NSW) sets out who can make a Family Provision Claim. While a claimant does have 12 months from the date of death, if you are considering making a claim you should do so as soon as possible after the deceased’s passing, because 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 to the successful climate. If both of these initial criteria are met – that is the claimant is an eligible person and 12 months from the date of death has not yet passed, the first step would be for the claimant to meet with a solicitor so that their claim can be properly assessed before continuing.
Usually, the claimant’s solicitor will first communicate with the executor for the estate, letting them know of the claimant’s intention to make a Family Provision Claim. This allows for an opportunity for negotiation before approaching the courts. Only if negotiation fails would the claimant’s solicitor issue an application for a Family Provision Claim to the Supreme Court. However, compulsory mediation happens before the court hears the case, and in the vast majority of cases the claim is settled during mediation, meaning that very rarely do these matters have to go all the way to court. Mediation involves the claimant’s legal team and that of the estate, and claimant only needs to attend a court hearing if mediation fails.
How to Challenge the Validity of a Will in NSW
Unlike making a Family Provision Claim, there is no time limit to challenging the validity of a Will in New South Wales. However, you must have standing, meaning you must either:
- have been named as a beneficiary in an earlier Will;
- be a beneficiary in the deceased’s last Will;
- be considered a beneficiary under the laws of New South Wales if the deceased did not have a Will(an intestacy).
‘Standing’ simply means that the applicant has an interest or is sufficiently interested in the outcome of the estate. As an 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 by the deceased when they 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 that you have grounds for challenging the Will–supported by evidence–your solicitor will also first check whether there has already been a grant of Probate. Even though there is no time limit to challenging the validity of a Will, it is often better to do so before the grant of Probate is made.
If there has been no grant of Probate, your solicitor can file a Probate Caveat to prevent a grant of Probate. This allows the two parties to discuss the matter and ideally reach an agreement on the validity of the Will, allowing the Probate Caveat to be lifted. If this fails, the party claiming that the Will is valid will file a Statement of Claim with the Supreme Court of NSW. This explains why they believe the Will is valid. The defendant, would then file a Defence to the Claim, setting out the reasons for believing the Will is not valid. Evidence in the form of affidavits is prepared by both parties and filed in court, with a Judge then considering both before making any decision.
Challenging the validity of a Will and making a Family Provision Claim are both complex matters than can also be emotionally taxing. Which is why it is always recommend that you work with a solicitor who has experience in dealing with contested Wills from the earliest stages and as the matter proceeds.