Will Disputes & Defence

+ Do I have the right to contest a Will?

Not everyone has the right to challenge a Will. In New South Wales, under the Succession Act 2006, only people who are considered ‘eligible’ can contest a Will.

Eligible people are:

• Spouse/de-facto partner
• Children
• Former spouses
• Long-term partner in a close personal relationship (at the time of death)
• A grandchild who was wholly or partly dependent on the deceased
• Someone who was at any time part of the same household and who was dependent on the deceased

If you were estranged from the deceased at the time they pass away, this does not prevent you from making a claim if you are a considered an “eligible person”.

The Court will consider a number of factors when assessing your case, such as:

• Your dependency on the deceased
• Determining financial need
• Relationship to the deceased

If you are not sure if you’re eligible or what your legal position is, contact us for expert advice on (02) 9279 1100.

+ What is the time-limit to contest a Will?

In NSW you have 12 months following a person’s death to file a Family Provisions claim with the Court. Time limits differ between Australian states. If you believe you have a claim, call us at the earliest opportunity for prompt legal advice on (02) 9279 1100.

+ Under what grounds can I contest a Will?

If you are an eligible person you may contest a Will if, for example:

• You have been left out of a Will
• You did not receive what you believe you were entitled to
• You think the Will is fraudulent or invalid
• You think the deceased was under duress/pressure (undue influence) to write their Will a certain way
• You feel the deceased did not have mental capacity at the time the Will was written

Because the costs of contesting a Will can be considerable, it’s essential to get expert legal advice before making a Family Provisions claim.

+ What is a Family Provisions claim?

A Family Provisions claim is an application to the Supreme Court of NSW for you to receive a share (or a bigger share) of an estate. Compulsory mediation is required between all parties, before any Court hearing.

+ Can I contest a Will that was written overseas?

Issues with foreign Wills are becoming more common. Under the Succession Act, Courts will look at the rules in the country where the Will was written, to determine validity and ultimately your claim. Expert legal advice is essential in these cases.

+ Can I get a copy of someone’s Will?

Once probate has been granted, a Will is a public document and therefore accessible to anyone that requests it (subject to the relevant fee).

If probate has not been granted, then under the Succession Act only certain people can apply for a copy. Including:

• Named beneficiary
• Spouse/de-facto partner
• Child/grandchild
• Parent or Guardian of the deceased
• The named Enduring Power of Attorney

You can find out more about getting access to a Will and copies on the Supreme Court NSW website.

+ What should I do if someone contests a Will?

You cannot prevent or stop someone who is considered an ‘eligible’ person from contesting a Will. If someone has made a claim or is planning to, talk to us for expert legal advice on (02) 9279 1100.

+ How much does it cost to contest a Will?

Costs vary depending on whether the case can be solved through mediation (without Court involvement) or if the case goes to the Supreme Court. In some cases, legal costs are paid by the estate, if the case meets certain principles. We will advise you of costs at the outset, and your likely chances of success, depending on your situation and circumstances.

+ Do Will disputes always go to Court?

No – at Betar Lawyers we aim to keep Will and estate disputes out of Court, to minimise costs and to ensure a swift and successful resolution for you. As wills and estate lawyers we are highly skilled at estate mediation.

+ What are the common causes of Will and estate disputes?

Estate disputes are more common than you think. Many issues are caused by split families, estranged families and personal relationships the deceased had at the time of death.

Examples include:

• Unequal distribution of estate between siblings
• Claims made by step children
• Claims made by estranged children/spouses
• Claims made by long-term/live-in partners
• Doubt over the deceased’s state of mind at the time the Will was written

No matter what your reasons are for disputing a Will, it’s vital to get expert legal advice first, at the outset, to understand if you have a good chance of making a successful claim.

At Betar Lawyers we have many years of expertise in dispute and defence of estates, successfully resolving cases at mediation without the need for Court action. Talk to us for an initial review of your case on (02) 9279 1100.

+ Useful links: Estate disputes

For more information, visit:

• NSW Government Communities & Justice: Family Provisions Claims

• Cases: Stejskal v Hely & Ors [2019] NSWSC 1417 (17 October 2019)

• Estate Morris: Grady v Deavin [2014] NSWSC 1034 (31 July 2014)