Contesting a Will

In some cases, a family member may contest a deceased person’s Will. 

We have extensive experience in representing both those seeking to contest a Will as well as those seeking to defend such a claim.  

There is a common misconception that people can contest someone’s Will because they were not treated ‘fairly’. What is ‘fair’, however, has little to do with anything in cases like this. To contest a Will in New South Wales, a potential claimant needs to prove that they: 

• are eligible to bring a claim (within the meaning of the Succession Act 2006); and 

• have not been adequately provided for under the Will of the deceased person for their maintenance, education and advancement in life. 

Making a Family Provision Claim 

Strict timeframes apply for making a family provision claim in New South Wales, so it is essential to get legal advice early. We can assess your eligibility, document your claim, gather evidence, and notify the executor on your behalf. Once an executor has been notified of a potential claim, it is a good idea to consider the possibility that the matter could be settled without the involvement of the court. 

If that is not possible, then a summons is filed in the Supreme Court of New South Wales, and family provision proceedings are commenced. These matters are always referred to mediation at first instance in an attempt to settle the matter without incurring excessive legal costs.  

Of course, in some cases, it is not possible to settle a matter at mediation, and the case must proceed to a hearing before a Judge of the Supreme Court. 

What Does the Court Consider in a Family Provision Claim? 

In determining a family provision claim, the court considers a range of factors outlined in the Succession Act 2006. The most common factors typically consider the claimant’s financial needs and resources, the relationship between the claimant and the deceased, and the competing interests of other beneficiaries.  

Other factors will be considered when they are relevant to the case, such as any contributions made by the claimant to the deceased’s care and wellbeing and the size and nature of the deceased’s estate.  

Can I Make a Family Provision Claim if the Deceased Left no Will? 

Yes. 

Intestacy laws govern the distribution of assets when someone dies without leaving a valid Will (i.e., they die intestate). Intestacy laws typically favour those who would usually be eligible to make a family provision claim – spouses, de facto partners, and children (in some cases, certain other ‘dependents’ may be eligible, and a lawyer can advise on this). However, intestacy laws are complex and depending on the circumstances (including the size of the estate), certain family members may be excluded from receiving anything.  

If a person dies intestate, the eligible claimant would make the family provision claim on the basis that the proposed distribution under intestacy laws would not adequately provide for their maintenance, education and advancement in life. 

Getting Help 

Family provision claims are complex and require a lot of work. We act in many of these cases each year and have become experts in the field. Our experience will ensure that your matter is handled efficiently and effectively. 

We also understand that for many clients, this will be the first time they have faced any type of Court proceedings. We are available to answer your questions, address any concerns and will keep you informed along the way. 

If you need assistance, call 02 9559 2075 or email [email protected].