FAQs

In New South Wales, the following people may be eligible to make a claim for will dispute:

Spouse or de facto partner: A current or former spouse or de facto partner of the deceased.

 Children: This includes biological children, stepchildren, and adopted children. It also includes children who were born outside of marriage.

Dependants: Any person who was wholly or partly dependent on the deceased person at the time of their death.

Former spouse or de facto partner: A former spouse or de facto partner who was receiving or entitled to receive maintenance from the deceased person.

Grandchildren: Grandchildren of the deceased person who were wholly or partly dependent on the deceased at the time of their death.

Any person who was living in a close personal relationship with the deceased. This includes a friend or carer who was living with the deceased person in a close personal relationship at the time of their death.

Yes, a will can be changed during a dispute. In fact, it is not uncommon for parties to negotiate a settlement of a will dispute that involves changes to the terms of the deceased person’s will.

However, any changes to the will must be made in accordance with the relevant legal requirements. For example, the changes must be made with the necessary formalities, such as the signing and witnessing of a new will or codicil.

If the parties have reached an agreement to settle the dispute, it is important that the settlement is documented in writing and signed by all parties. This settlement agreement should clearly set out the terms of the agreement, including any changes to the will, and should be filed with the court as part of the settlement process.

It’s important to note that any changes made to a will during a dispute must be voluntary and made with the full understanding of the testator (the person who made the will) and without undue influence or coercion. If there is any evidence to suggest that the testator was pressured into making changes to their will, those changes may be challenged in court.

Yes, a will can be contested if there is no provision for a dependent under the deceased person’s will.

 In New South Wales, the Succession Act 2006 allows eligible persons to make a family provision claim if they have been left out of the deceased person’s will, or if the provision made for them in the will is inadequate.

Under the Succession Act 2006, eligible persons include:

• The spouse or de facto partner of the deceased person
• The children of the deceased person
• A former spouse or de facto partner of the deceased person
• A person who was dependent on the deceased person
• A grandchild of the deceased person who was wholly or partly dependent on the deceased person at any time

If a dependent has been left out of the deceased person’s will or has not been adequately provided for, they may be able to make a family provision claim. The court will consider a range of factors when determining whether adequate provision has been made for the claimant’s proper maintenance, education, or advancement in life.

Yes, it is possible to challenge the executor of a will in certain circumstances. An executor is responsible for administering the deceased person’s estate and ensuring that the terms of the will are carried out. If you believe that the executor is not fulfilling their duties or is acting improperly, you may be able to challenge their appointment or seek their removal as executor. Grounds for challenging an executor may include: Lack of capacity: If the executor lacks the mental or legal capacity to carry out their duties as executor, they may be removed. Conflict of interest: If the executor has a conflict of interest, such as a personal interest in the estate or a conflict with one of the beneficiaries, they may be removed. Misconduct or breach of duty: If the executor is not fulfilling their duties properly, such as failing to distribute the assets according to the terms of the will or misappropriating estate assets, they may be removed. To challenge the appointment of an executor or seek their removal, you will need to file an application with the court. It’s important to seek legal advice from a specialist will dispute lawyer who can advise you on the process for challenging an executor and the potential outcomes of doing so. It’s also important to note that challenging an executor can be a complex and costly process, and it may be more appropriate to attempt to resolve any issues with the executor through negotiation or mediation, where possible.

Yes, you may be able to contest a will in New South Wales even if you live outside of the state or territory. However, the specific rules and procedures for contesting a will may vary depending on the jurisdiction in which the deceased person lived and the laws that apply to the estate.

If you live outside of New South Wales and wish to contest a will in that state, you will need to engage a specialist will dispute lawyer who is familiar with the laws and procedures in New South Wales. 

It’s important to note that there are strict time limits for contesting a will in New South Wales, so it’s important to seek legal advice as soon as possible to ensure that you do not miss any important deadlines.

Accepting a bequest from a will may impact your ability to challenge the validity of the will or make a claim for further provision from the estate, depending on the laws of the jurisdiction in question.

 In many jurisdictions, accepting a bequest may be seen as an acknowledgement of the validity of the will, which could make it difficult to later contest the will’s validity. Similarly, if you have already received a bequest under the terms of the will, you may not be able to make a claim for further provision from the estate, unless you can demonstrate that the bequest you received was not adequate provision for your needs.

 However, the laws surrounding the impact of accepting a bequest on will disputes or Family Provision Claims can vary between jurisdictions, so it’s important to seek legal advice from a specialist will dispute lawyer who can advise you on the specific laws and rules that apply to your case.

 In any case, if you are considering challenging a will or making a claim for further provision, it’s important to act promptly and seek legal advice as soon as possible, as there may be strict time limits for making a claim or contesting a will.

The proceedings for will disputes in New South Wales can begin in several ways, depending on the circumstances of the case.

 Some common ways include:

Mediation: Before filing a formal claim, parties may engage in a mediation process to resolve the dispute through negotiations. Mediation is a form of alternative dispute resolution that involves a neutral third party (the mediator) facilitating negotiations between the parties.

Filing a Summons: If mediation fails, the next step is usually to file a Summons in the Supreme Court of New South Wales. The Summons initiates court proceedings and must include a detailed statement of the facts and legal arguments that support the claim. The defendant will have an opportunity to respond to the Summons.

Seeking a Family Provision Order: If the dispute is over the provision made for a person’s maintenance, education, or advancement in life under a deceased person’s will or intestacy, the claimant may file a Family Provision Order (FPO) application. The FPO application must be filed within 12 months of the deceased’s death, and the court will consider various factors to determine whether the deceased adequately provided for the claimant.

Applying for Probate: In some cases, a dispute may arise over the validity of the deceased’s will. In such a case, a person may apply for a grant of probate from the Supreme Court. This is a legal document that confirms the executor’s authority to manage the deceased’s estate. The probate application may trigger a will dispute if another party contests the validity of the will.

The proceedings for will disputes in New South Wales can begin in several ways, depending on the circumstances of the case.

Some common ways include:

Mediation: Before filing a formal claim, parties may engage in a mediation process to resolve the dispute through negotiations. Mediation is a form of alternative dispute resolution that involves a neutral third party (the mediator) facilitating negotiations between the parties.

Filing a Summons: If mediation fails, the next step is usually to file a Summons in the Supreme Court of New South Wales. The Summons initiates court proceedings and must include a detailed statement of the facts and legal arguments that support the claim. The defendant will have an opportunity to respond to the Summons.

Seeking a Family Provision Order: If the dispute is over the provision made for a person’s maintenance, education, or advancement in life under a deceased person’s will or intestacy, the claimant may file a Family Provision Order (FPO) application. The FPO application must be filed within 12 months of the deceased’s death, and the court will consider various factors to determine whether the deceased adequately provided for the claimant.

Applying for Probate: In some cases, a dispute may arise over the validity of the deceased’s will. In such a case, a person may apply for a grant of probate from the Supreme Court. This is a legal document that confirms the executor’s authority to manage the deceased’s estate. The probate application may trigger a will dispute if another party contests the validity of the will.

In general, a simple and uncontested Will can be settled relatively quickly, often within 9 to 12 months. However, if the Will is contested, the process can take significantly longer, and it can take years to reach a resolution.

 The length of time it takes to settle a Will dispute in New South Wales can vary depending on various factors, including the complexity of the case, the level of cooperation between the parties, and the court’s availability.

 If the parties can reach a settlement through negotiation or mediation, the process can be faster, and a resolution can be reached within a few months. However, if the matter proceeds to court, the process can take much longer, and it can take several years to reach a final resolution.

The cost of contesting a Will in New South Wales can vary depending on the circumstances of the case and the complexity of the dispute.

Potential costs involved in contesting a Will in New South Wales may include:

Lawyers may charge hourly rates or fixed fees, depending on the complexity of the case. Depending on their experience rates can range between $100 to $450 per hour.

Court fees:

If you need to file a claim in court to dispute the Will, there will be court fees involved.

Expert fees:

You may need to engage the services of experts such as medical professionals, accountants or valuers to provide evidence in support of your case. This can add to the overall cost.

Mediation and arbitration fees:

If you choose to resolve the dispute through mediation or arbitration, there may be fees involved.

 The cost of contesting a Will outside of court can range between $5,000 to $10,000. In court, the cost can range up to $100,000. This all depends on the complexity of the case and the legal fees charged by the lawyer. In some cases, the estate may be required to pay some or all of the legal fees for both parties involved in the dispute.

 We recommend that you speak with one of our lawyers who specialises in will and estate litigation to obtain an estimate of the likely costs involved in your particular case.

If the deceased person had assets in multiple jurisdictions both within Australia and outside of Australia, the administration of their estate can become more complex. Each jurisdiction may have its own laws and procedures for probate or estate administration, which could affect how the deceased person’s assets are distributed.

In general, the process of administering the estate will depend on the laws of the jurisdiction where the deceased person was domiciled (i.e. their permanent place of residence) at the time of their death. This jurisdiction is typically responsible for granting probate or letters of administration, which are legal documents that authorise the executor or administrator of the estate to manage and distribute the deceased person’s assets.

However, if the deceased person had assets in other jurisdictions, the executor or administrator may need to apply for probate or letters of administration in those jurisdictions as well. This can involve working with local lawyers or other professionals who are familiar with the laws and procedures in those jurisdictions.

The process of administering an estate with assets in multiple jurisdictions can be time-consuming and expensive.

 It’s important to work with experienced legal and financial professionals who can help you navigate the complexities of cross-border estate administration and ensure that the deceased person’s assets are distributed according to their wishes and in compliance with all relevant laws and regulations.

If a will is found to be invalid, it is treated as if the deceased person died intestate, which means without a valid will. In this case, the deceased person’s estate will be distributed in accordance with the rules of intestacy set out in the Succession Act 2006. Under the rules of intestacy, the deceased person’s estate is distributed to their next of kin, in a specific order of priority. For example, if the deceased person was married with no children, their spouse would inherit the entire estate. If the deceased person was unmarried with no children, their estate would be distributed equally between their parents. If the will is found to be invalid due to a legal error, such as improper execution or undue influence, the court may also consider whether there is a previous valid will that can be used to distribute the estate. If there is no valid previous will, the estate will be distributed in accordance with the rules of intestacy. It’s important to note that if a will is found to be invalid, any gifts or bequests made in the will will not be carried out, and any appointments made in the will, such as the appointment of an executor or guardian, will also be invalid.

A will dispute is a legal dispute over the validity or interpretation of a will. This type of dispute may arise if a beneficiary or family member believes that the will does not reflect the deceased person’s wishes, or if there are concerns about the circumstances under which the will was created. Examples of will disputes include: Contesting the validity of the will due to undue influence, fraud, or lack of testamentary capacity. Challenging the interpretation of the will, such as the meaning of specific provisions or clauses. Making a claim for family provision if the will does not adequately provide for certain family members or dependents. A probate dispute, on the other hand, is a legal dispute over the administration of the deceased person’s estate. This type of dispute may arise if there are concerns about the way in which the executor is carrying out their duties, or if there are disputes among beneficiaries about the distribution of the estate. Examples of probate disputes include: Challenging the appointment of the executor or seeking their removal. Disputing the valuation of assets or liabilities of the estate. Disputing the distribution of the estate, such as the apportionment of assets between beneficiaries or the interpretation of distribution clauses in the will. It’s important to note that will disputes and probate disputes can sometimes overlap, as issues related to the validity or interpretation of the will can also impact the administration of the estate.

In New South Wales, the Succession Act 2006 governs Family Provision Claims.

When determining family provision claims, the court will consider a range of factors to determine whether the deceased person made adequate provision for the claimant’s proper maintenance, education, or advancement in life.

Some factors the court may consider include:

The relationship between the claimant and the deceased person: This includes the nature and extent of their relationship, and the level of dependence that the claimant had on the deceased person.

The financial resources and needs of the claimant: This includes their income, assets, and liabilities, and their financial requirements for their maintenance, education, and advancement in life.

The financial resources and needs of any other beneficiaries under the deceased’s will or intestacy: This includes their income, assets, and liabilities, and their financial requirements for their maintenance, education, and advancement in life.

The size and nature of the deceased person’s estate: This includes the value and composition of their assets, and any liabilities or expenses that need to be taken into account.

The deceased person’s testamentary intentions: This includes any statements that they made in their will or elsewhere about their reasons for making or not making provision for the claimant.

Any contributions that the claimant or any other beneficiary made to the deceased person’s estate: This includes any contributions made by way of work, assistance, or financial support.

The character and conduct of the claimant: This includes any criminal convictions or other disreputable conduct.

 Any other relevant factors that the court considers to be appropriate in the circumstances.

In New South Wales, a notary public is a public official who is authorised to certify and authenticate documents for use both within and outside of Australia. However, their role in a will dispute is limited.

 In a Will dispute in New South Wales, a notary public may be involved in the following ways:

Witnessing the signing of the will: A notary public may be called upon to witness the signing of a will and certify that the testator signed the will in their presence.

Authenticating documents: A notary public may be asked to authenticate documents that are relevant to the will dispute, such as witness statements or affidavits.

Certifying the will: In some cases, a notary public may be asked to certify a copy of the will, particularly if the original will is lost or destroyed.

 It’s important to note that the role of a notary public in a will dispute is limited, and they cannot provide legal advice or representation in the dispute.

In New South Wales, there are certain categories of people who are eligible to contest a will. These include:

• A spouse or de facto partner of the deceased person.

• Children of the deceased person, including adopted and stepchildren.

• Former spouses of the deceased person.

• People who were financially dependent on the deceased person at the time of their death.

• People who were in a close personal relationship with the deceased person at the time of their death.

If you fall into one of these categories, you may be able to make a claim to challenge the validity of the deceased person’s will or to seek further provision from their estate.

If you wish to dispute a Will in New South Wales, you can do so by following the procedures set out in the Succession Act 2006 (NSW).