The Ultimate Guide to Contesting a Will

For most people over the age of 18, creating and maintaining a will during their lifetime is essential. It equates to less stress for the loved ones you leave behind and it means that after you die, your affairs can be more easily carried out according to your wishes.

These days, people often refer to the five stages of grief (denial, anger, bargaining, depression and acceptance) as the process that a person grieving for family members or close friend may experience. Adding conflict over a will to the mix of post-death emotions is not ideal but often inevitable.

If you are feeling as though you or your family have not been adequately provided for, it’s important to speak up. Explore our ultimate guide to contesting a will.

What is a will?

A will is a legal document that outlines the wishes of the deceased in regards to distribution of his or her assets. It typically covers the nature of the assets, the people who are entitled to receive those assets (beneficiaries), and who is responsible for carrying out the wishes of the deceased person (the executor).

When you contest a will, you are claiming that the will is unfair and excludes people who should have been accounted for, or that the will does not reflect the deceased’s intentions at the time of his or her death.

What is the process for contesting a will?

Generally speaking, there are five stages to challenging a will:

1. Appointing a lawyer

Although not legally required, most people consult with a legal professional during the early stages of the will dispute process to determine their eligibility and requirements for disputing a deceased’s will.

2. Collating evidence

To successfully contest a will, it’s crucial to collect as much accurate and relevant evidence as possible regarding your relationship with the deceased and your entitlement to a share of their assets or joint assets. A lawyer can talk you through the required criteria that must legally be proved to contest a will.

3. Negotiating a settlement

In some cases, a settlement may be reached by negotiation between parties before the will dispute goes before the Court. Settling before court proceedings begin can be a cost-saving measure, but it’s nonetheless important to seek professional legal advice at this stage to ensure you are protected should the other party decide to go against your claim in Court.

4. Mediation

During the mediation stage, your lawyer must file initiating documents in the form of summons and affidavits. As part of the mediation process, the executor of the estate is required to provide a list of the estate’s assets, their value of each and the current total value of the estate.

5. Court proceedings

If the will dispute goes to Court, the Court will determine:

• If you are an eligible person to contest the will
• Whether you have already received a reasonable amount of assets (known as “adequate provision”)
  What, if any, further provisions should be made
• There are a wide range of factors that the Court will consider when making a decision, which is why it’s advisable to have legal representation present.

Can I represent myself in a will dispute?

The short answer is yes, but there are several reasons why contesting a will on your own isn’t recommended:

1. There are myriad legal obligations to consider

Contesting a will on your own increases the chances of you not meeting all your legal requirements or overlooking key evidence that could be used to prove your case. A lawyer with experience in contesting wills will be well versed in the nuances of the legal system and what’s required for your case.

2. A settlement may be reached before the will dispute goes to Court

Many will disputes are settled before they reach Court. Having a lawyer on your side is crucial for navigating the mediation process and helping you achieve a favourable outcome as quickly as possible.

3. Will disputes are often stressful and emotionally-taxing

Losing a loved one or family member is difficult at the best of times, let alone having to worry about contesting a will. Enlisting the guidance of a lawyer takes the pressure off and gives you peace of mind that the will dispute is being handled by a professional.

4. Costs can add up

While you might think the average cost to dispute a will is lower if you represent yourself, you’ll still need to pay upfront costs such as court charges, administration costs and investigation expenses when pursuing a claim. And, if you dispute a will yourself and your claim is unsuccessful, you won’t be able to recoup these costs.

Who can contest a will?

Contesting or disputing a will is an emotionally-charged event that can often be quite overwhelming.

In addition to dealing with the loss of a parent or partner from a de facto relationship, you must also navigate the tricky formal requirements that come with contesting a will. Although it is always best to enlist the aid of a legal professional in these matters, we have put together a handy guide outlining the basics when it comes to who can dispute a will.

Am I entitled to challenge a will?

According to the Succession Act 2016 (NSW), you may be entitled and are an eligible person to contest a will if you are:

• A spouse of the deceased
• A former spouse of the deceased
• A de-facto partner of the deceased
• A same-sex partner of the deceased
• A child of the deceased (or child the deceased was responsible for)
• A grandchild of the deceased
• A dependent of the deceased
• A person living with the deceased person in a close and personal relationship at the time of their death

Are children allowed to contest a will?

If you are a child of the deceased, you are an eligible person to contest the will. The term “child” in this instance includes:

• Any adult children
• Any children under the age of 18
• Any adopted children

Are grandchildren or step children able to dispute a will?

Unfortunately under Australian law, biological and step children are treated very differently. If you are a step child who wishes to dispute a will, you will need to show the court that you were either wholly or partially dependent on the deceased for your wellbeing.

Similarly, if you are a grandchild of the deceased, you will need to show you were dependent on the deceased in order to eligible contest the will.

But what does this mean for step children?

These days, we are seeing increasingly blended Australian families, which means that there are more instances of stepchildren being included (or disincluded) in wills.

As previously mentioned, being a step child means that you are not automatically eligible to contest a will and will need to prove your dependence on the deceased. In order to determine your eligibility, the court will look at a number of factors including:

• The relationship between you and the deceased
• The age of the stepchild when the new family was created
• The type of support given to the stepchild by the deceased (financial, emotional, or educational)

Is there a time limit when challenging a will?

In NSW, you must submit a family provision claim (contest a will) within 12 months of the will-maker’s death. The Court may also grant an extension of time if you can show that there is sufficient cause for making a late application.

What happens if a will does not exist?

If someone dies without a valid will – termed dying “intestate” – their assets will be divided according to the laws of the state they lived in which usually means their assets go to the next of kin, but if there is none, then they go to the state.

Sometimes people die, not with a formal will that ticks all the legislative requirements, but with some other document attesting to their wishes that perhaps falls short of legal requirements (such as the requirement relating to the presence and signature of witnesses). If the court believes that the deceased person intended it to be their will, then more often than not, the court may consider that document to be the will.

In instances where a will does not exist or is not considered valid, we should refer to The Succession Amendment (Intestacy) Bill, which commenced in 2010. According to intestacy, the entitlements will vary depending on who the deceased has left behind.

• Where the deceased leaves behind a spouse and child(ren), the spouse receives the whole estate.
• Where the deceased leaves behind a spouse and children (who are not the children of the deceased), the spouse receives the whole estate.
• Where the deceased leaves behind a spouse and children (who are the children of the deceased), the spouse receives their entitlements and the children share the remainder equally.
• Where the deceased leaves behind no spouse but children, the children share the estate equally.
• Where the child of the deceased has died but has surviving children, those children will take the deceased child’s share equally.

Will Contesting FAQs

Explore some frequently asked questions relating to contesting wills.

What is a grant probate?

A grant of probate is essentially a declaration from the Supreme Court, sought by the executor, that the will is the last valid will of the deceased. Whether probate is needed or not depends on the type of assets that the deceased has left behind. Probate allows the executor to start their work – collecting and distributing the assets of the state according to the words of the will.

There are two types of probate:

• Common form – where the will is uncontested
• Solemn form – where the will is contested and all interested parties can partake in the court proceedings

What is an “adequate provision”?

If the Court finds that you have grounds to dispute the will, it will then consider whether you have been left with a reasonable amount of assets (adequate provision). In making a decision, the Court will considers factors such as:

• The nature of your relationship with the deceased and how long you knew him or her
• Financial, domestic or caring support you offered to the deceased
• The scope of the estate
• Your personal needs and means of support
• Your age, character and conduct before and after the deceased’s death
• Whether you were wholly or partially dependent on the deceased, and if dependent, any mental, physical or intellectual disabilities you have
• Any obligations the deceased may have had to you, or any other factors the Court considers relevant to its judgement

What is a grant of administration?

If there is no executor or the executor renounces probate of the will, then an application must be made to the Supreme Court for a grant of administration with the will annexed. The court then appoints an administrator (usually the beneficiary with the largest portion of the estate) to, similarly to an executor’s role, distribute the estate according to the will.

What does the court look at when contesting wills?

There are broadly two ways to contest a will – making an application under the Family Provision chapter of the Succession Act 2006 or questioning the validity at the Supreme Court.

The Supreme Court considers the following:

• Whether the will was the last made by the deceased person, or if it had been cancelled or revoked
• Whether the deceased had the mental capacity to create it
• Whether the document was altered after it was signed
• Whether the deceased was tricked or “unduly influenced”

The court also has power to interpret wills and rectify a will if it does not sufficiently express the intentions of the will-maker. Generally speaking, it is wise to seek legal advice if you are thinking about challenging a will.

What are the legal fees?

It is important to keep in mind the legal costs associated with will processes. There are professional fees for the work up to the point of obtaining the grant of probate and the letters of administration. A successful application to contest a will is usually paid from the estate but the court may order costs as it sees fit. Further, there are post-probate fees associated with executing the will (i.e. collecting and dividing assets, paying debts etc) plus any third party costs such as court filing fees, and the costs incurred obtaining documents such as death certificates.

Before you consider contesting a will, our team of estate lawyers at LHD Lawyers can provide legal advice on your legal matter. Contact us today or call 1800 455 725 to arrange a free consultation. Make a claim today.