Contesting a Will means you are making a legal claim for a share, or a larger share, of a deceased person's estate. This type of claim, known as a Family Provision Claim, is made when you believe the Will has not made adequate financial provision for your proper maintenance, education, and advancement in life.

Unlike challenging a Will, where you question its legal validity, contesting a Will accepts that the Will is valid but argues that its contents are unfair to you.

In New South Wales, the law specifies who is an "eligible person" to make a Family Provision Claim. This group includes:

• The spouse of the deceased at the time of death.

• A person who was in a de facto relationship with the deceased.

• A child of the deceased.

• A former spouse of the deceased.

• A person who was, at any time, wholly or partly dependent on the deceased and is a grandchild or a member of the deceased’s household.

Simply being an eligible person does not guarantee success. The court must be convinced that you have a genuine financial need that was not adequately met by the Will.

Every person has the right to decide who will inherit their assets. However, this freedom is balanced by laws that allow certain people to contest a Will under specific circumstances.

You can contest a Will when you feel that you have been left out or have not been adequately provided for. To do so successfully, you must first prove that you are an ‘eligible person’ as defined by law. This is the primary ground for a Family Provision Claim.

It is critical to act quickly. In New South Wales, you must file your application for a Family Provision Claim with the court within 12 months from the date of the deceased’s death.

If you miss this deadline, you will need to ask the court for special permission to proceed. The court will only grant an extension if you can provide a sufficient reason for the delay. To protect your rights, it is essential to seek advice from a will dispute lawyer as soon as possible.

If you miss the 12-month deadline in NSW, you may lose your right to make a claim. You can apply to the court for an extension, but this will only be granted if you can provide a sufficient reason for the delay. Acting promptly is the best way to protect your entitlements.

In rare cases where the date of death is unknown, the court will determine a reasonable date based on the available evidence. Once the court establishes this date, you will have 12 months from then to file your application to contest the Will in New South Wales.

To succeed in a Family Provision Claim, the court must be satisfied of two things:

1. You are an eligible person: You must first demonstrate that you fall into one of the legally recognised categories of claimants.

2. Inadequate provision: You must then prove that the Will fails to make adequate provision for your proper maintenance and future welfare.

The court will consider many factors, including your financial position, your relationship with the deceased, the size of the estate, and the financial needs of other beneficiaries.

If the court rules against you, you have the right to appeal the decision. An appeal is not a complete re-hearing of the case. Instead, the Court of Appeal will review the original judge’s decision to determine if a legal error was made.

Yes. If a person dies without leaving a valid Will, they are said to have died ‘intestate’. In this situation, their estate is distributed according to a formula set by law, known as the rules of intestacy.

If you are an eligible person and believe the share you are set to receive under these rules is inadequate for your needs, you can still make a Family Provision Claim against the estate. The process is the same as if you were contesting a Will.

Yes, a parent can bring a Family Provision Claim against their child's estate in certain circumstances. While it is not a common scenario, it is a recognised legal right for a parent who can demonstrate financial need and other relevant factors.

If you are a beneficiary of a Will that is being contested by someone else, your own entitlement may be affected. It is essential to seek legal advice immediately to understand your rights and the options available to protect your position as a beneficiary.

To build a strong case, you will need to gather evidence that supports your claim. Helpful documents include:

• A copy of the most recent Will.

• Medical reports detailing your health needs.

• Financial records showing your economic circumstances.

• The names of any witnesses who can support your position.

Your legal representative will guide you on what further evidence is required to strengthen your application.

If a beneficiary who is part of the legal proceedings chooses not to participate or provide evidence of their financial needs, the court may infer certain things. It might conclude that the beneficiary has sufficient resources for their own needs and does not wish to put forward a competing claim against the estate.

In Family Provision Claims, the legal costs are often paid out of the deceased's estate. This is particularly common when the court finds that the claimant had a justified reason for bringing the claim and a successful outcome is achieved.

If the claim is unsuccessful or considered unreasonable, the court may order the claimant to pay their own costs and potentially the estate's legal fees. This risk is something we will discuss with you in detail. We also offer No Win, No Fee arrangements, which can provide financial security during this process.

A strained relationship or period of separation can be a relevant factor, but it does not automatically disqualify you from making a successful claim. Being an eligible person with a clear financial need is the starting point.

The court will conduct a full investigation into the circumstances of your relationship with the deceased. It will then determine whether a typical member of the community would expect the deceased to have made provision for you, despite the history of separation.

Most inheritance disputes are settled out of court. In New South Wales, it is compulsory for all parties to attend a mediation session before a matter can proceed to a final court hearing.

Mediation is a confidential meeting where you, your lawyer, and the other parties try to negotiate a resolution with the help of a neutral mediator. This process is highly effective and resolves the vast majority of cases, saving time, expense, and the emotional stress of a court trial.

There is no set formula to determine how much a person will receive. The amount awarded by the court, if any, depends entirely on the specific circumstances of your case.

The court's role is not to rewrite the Will to be "fair," but to ensure you receive adequate provision for your needs. It will consider factors such as:

• Your current financial situation and future needs.

• Your age and health.

• Any contributions you made to the deceased’s estate or welfare.

• The nature and length of your relationship with the deceased.

Your will dispute lawyer can provide guidance on what you might reasonably expect based on previous, similar cases.

The court can make two types of orders in a Family Provision Claim:

• Interim Order: This is a temporary order made to provide you with urgent financial assistance while the case is ongoing. For example, the court might order a small, early payment from the estate to cover your immediate living expenses.

• Final Order: This is the concluding decision made by the court, either after a settlement is reached at mediation or following a final hearing. This order permanently settles the distribution of the estate.

Yes. Having a criminal record does not prevent you from making a Family Provision Claim. The court will consider all relevant factors, but a criminal history is not a bar to eligibility.

A person in prison cannot automatically start a claim. You must first apply to the court for permission, known as seeking ‘leave’. If the court grants leave, you may then proceed with your contested Will claim.