Why You Shouldn't Feel Guilty About Contesting a Will in NSW

Contesting a Will, Challenging a Will, Family Provision Claims

Losing a loved one is an emotionally challenging time. During this period of grief, concerns about inheritance can feel uncomfortable to discuss. Many people worry about appearing greedy or selfish when considering whether to contest a will. At Dormer Stanhope, we frequently hear clients say, "I don't want to look as though I only care about money" or "I don't want to be greedy."

If you've been left out of a will or believe you haven't been adequately provided for, it's important to understand that challenging a will is a legitimate legal right—not something to feel guilty about. This article explains the different types of will disputes and why pursuing your rightful claim is both reasonable and lawful.

Understanding Will Disputes in New South Wales

There are two main categories of will disputes in NSW: challenges to a will's validity and family provision claims. Each serves a different purpose, but both exist to protect your rights and ensure fair outcomes.

Challenges to the Validity of a Will

When you challenge a will's validity, you're questioning whether the will truly reflects the deceased's wishes. Common grounds for challenging a will's validity include:

• Fraud: The will was created or altered through deceptive means

• Lack of testamentary capacity: The will-maker didn't have the mental capacity to understand what they were doing

• Lack of knowledge and approval: The will-maker didn't understand or approve the contents of their will

• Undue influence: Someone pressured or coerced the will-maker into making certain provisions

• Forgery: The will or the signature is not genuine

These challenges are based on the principle that the will doesn't represent the deceased's true intentions. Whether those intentions were undermined by coercion, fraud, forgery, or a lack of mental capacity, the will document fails to embody the deceased's actual wishes.

When you challenge a will's validity, you're not being greedy—you're seeking to honour what the deceased truly wanted. You're preventing third parties from substituting their own wishes for those of your loved one.

Family Provision Claims in NSW

The second type of will dispute is a family provision claim. These claims acknowledge that a will is valid but argue that it hasn't adequately provided for the applicant's needs.

The History and Purpose of Family Provision Claims

Family provision legislation exists in every Australian state, though the specific wording varies. In NSW, the Succession Act 2006 empowers the court to order that additional provision be made from an estate for an eligible person's maintenance, education, or advancement in life.

To make such an order, the court must be satisfied of two things:

1. The deceased hasn't made adequate provision for the applicant

2. The court should make provision for the applicant

The first test is relatively straightforward and objective. The second requires the court to exercise discretion, considering what the deceased ought to have done in the circumstances.

Importantly, the court doesn't have the power to rewrite a will simply because it seems fair. Instead, it considers what a reasonable person in the deceased's position ought to have done, having regard to all the circumstances and their moral obligations.

Who Can Make a Family Provision Claim?

In NSW, only certain people are eligible to make a family provision claims:

• Spouses (including de facto partners)

• Children (including adopted and step-children in some circumstances)

• Former spouses in certain situations

• People who were wholly or partly dependent on the deceased

• People in a close personal relationship with the deceased who were living with them at the time of death

This limited category of eligible people reflects the concept inherited from English law that a person has a moral duty to provide for their family and dependents.

Why You Shouldn't Feel Guilty About Making a Family Provision Claim

The legislation itself recognises that family members and dependents deserve adequate provision. The limitations on who can apply, combined with the court's consideration of moral obligations, mean that only deserving applicants succeed in their claims.

If you're eligible to make a claim and haven't been adequately provided for, you're simply asking the court to enforce the moral duty the deceased owed to you. This isn't greed—it's seeking fair treatment under the law.

Common Concerns About Contesting a Will

"I Don't Want to Cause Family Conflict"

Family disputes can be emotionally draining, but avoiding a legitimate claim won't necessarily preserve family harmony. At Dormer Stanhope, we're committed to resolving disputes as amicably as possible, minimising family conflict while protecting your rights.

Many will disputes are resolved through negotiation and mediation, without the need for costly court proceedings. Our experienced lawyers guide you through this process with sensitivity and professionalism.

"Legal Costs Are Too High"

We understand that cost is a significant concern, especially during an already stressful time. Our services are designed to be cost-effective, and in many cases, legal fees can be paid from the estate rather than from your own pocket.

We offer a free initial consultation to assess your case and explain your options clearly. We'll provide you with a transparent breakdown of potential costs so you can make an informed decision.

"The Process Is Too Complicated"

Probate and will disputes can seem overwhelming, especially if you're unfamiliar with legal processes. That's where we come in. At Dormer Stanhope, we provide clear, step-by-step guidance through every stage of your claim.

We explain legal terms in plain language and keep you informed throughout the process. Our goal is to make the legal process as straightforward and stress-free as possible.

"I'm Worried About Confidentiality"

All discussions with our lawyers are strictly confidential. We take your privacy seriously and ensure that sensitive information about your family and finances remains secure.

Time Limits for Contesting a Will in NSW

It's important to act promptly if you're considering contesting a will. In NSW:

• Family provision claims must generally be made within 12 months of the date of death

• Challenges to a will's validity should be made before a grant of probate is issued, or as soon as possible afterwards

Missing these deadlines can make it difficult or impossible to pursue your claim, so it's essential to seek legal advice as soon as you have concerns about a will.

How Dormer Stanhope Can Help

At Dormer Stanhope, we understand the emotional and practical challenges of will disputes. We offer:

• Compassionate support: We recognise that this is a difficult time and treat every client with empathy and respect

• Clear communication: We explain your options in plain language and keep you informed at every stage

• Expert legal guidance: Our experienced lawyers have successfully handled numerous will disputes in NSW

• Cost-effective solutions: We work efficiently to achieve the best possible outcome while managing costs

• Confidential service: Your privacy is our priority

Ready to Take the Next Step?

If you've been left out of a will or believe you haven't been adequately provided for, don't let guilt or uncertainty stop you from seeking what you deserve. Contesting a will is a legitimate legal right, and with the right legal support, you can navigate this process with confidence.

Contact Dormer Stanhope today for a free initial consultation. We'll assess your situation, explain your options clearly, and help you decide on the best course of action.

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