Contested Wills (NSW)

Sep 2, 2020 Ben

Table of Contents

Contesting a Will

When a will is contested it is often a very emotional experience. The plaintiff typically feels left out or not properly provided for whilst the defendant feels that the plaintiff is trying to take something that s/he is not entitled to. The problem is compounded because the people during this period quite often feel drained and are still mourning the loss of a loved one.

For these reasons legal help is usually needed so that your rights are protected and to facilitate the making of rational decisions rather than purely emotionally driven ones. 

Self help options to contest a will in NSW

Not everyone wants to see a no-win no fee type lawyer. For such people we have prepared a range of self help solutions that will take you part of the way there. 

You can buy a template, in PDF form and as a template, based on information you submit. ​​​​​​

  

Current templates are:

Family provision claims in New South Wales (NSW)

In New South Wales Parliament has legislated to permit certain persons to contest a will in some circumstances within prescribed time frames.

The intention of the legislation was to ensure that the spouse and children of the deceased was looked after whilst recognising the role of testamentary freedom.

The legislation has had a few versions and has extended the availability of claims to other persons such as siblings, grandchildren and same-sex partners.

Given the cost of modern day litigation there is an increased focus on how to effectively control legal costs and to encourage parties to mediate their dispute.

Legislation Relevant to Contested Wills

Which Court can hear a will contest?

Most applications are brought in the Supreme Court of New South Wales even though the District Court has some limited jurisdiction (up to about $250k).

The Supreme Court has unlimited jurisdiction and is suited for larger applications. 

Procedure for contesting a will

Generally, the application for provision is commenced by way of a summons filed out of the Supreme Court. It needs to be supported with an affidavit that deals with the relevant matters and which is in accordance with the Court Practice Note. 

Property located outside NSW

When the property is located outside of NSW, such as where it is located overseas, then there will be jurisdiction question about the ability of an Australian Court to make a family provision order. 

Who can contest a will?

The legislation sets out who is an eligible person for the purposes of bringing a claim. An eligible person is defined in the legislation and includes persons such as the spouse of the deceased and their children.

Broadly, the court will ask if such an eligible person has been left without adequate provision, and if so the court will consider what (if any) provision should then be made. Historically, this was known as the two-stage process even though the Succession Act 2006 (NSW) does not specifically refer to it.

Essentially, the legislation gives the judge a discretion and overtime there have been trends in how judges have exercised this discretion. In bygone days observers and commentators have speculated the discretion was exercised to liberally. Increasingly, it appears that courts are a bit more reluctant to “give every applicant a prize”.

Time to contest a will

Generally, the claim must be brought within 12 months from the date of death unless there are grounds to apply for an extension of time.

In some cases it may be possible to seek an extension of time for bringing a contested will application. 

Factors relevant to will disputes

Some of the factors that the court may look at to decide a Family Provision Case include:

(a)  any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b)  the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,

(c)  the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d)  the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,

(e)  if the applicant is cohabiting with another person—the financial circumstances of the other person,

(f)  any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g)  the age of the applicant when the application is being considered,

(h)  any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i)  any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,

(j)  any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k)  whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l)  whether any other person is liable to support the applicant,

(m)  the character and conduct of the applicant before and after the date of the death of the deceased person,

(n)  the conduct of any other person before and after the date of the death of the deceased person,

(o)  any relevant Aboriginal or Torres Strait Islander customary law,

(p)  any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

The Plaintiff's Affidavit in Family Provision Claims

The Supreme Court's Practice Note specifies what the Plaintiff's affidavit is to contain. Some of the topics to be included are:

  • Deceased’s information
  • Eligibility to make a (Family Provision) Claim
  • Any family or other relationship between the plaintiff and the deceased person, including the nature and duration of the relationship
  • The nature and extent of any obligations or responsibilities owed by the deceased person to the plaintiff
  • The nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
  • The financial resources (including earning capacity) and financial needs, both present and future, of the plaintiff
  • If the plaintiff is cohabiting with another person-the financial circumstances of the other person
  • The age of the plaintiff when the application is being considered
  • Any physical, intellectual or mental disability of the plaintiff that is in existence when the application is being considered or that may reasonably be anticipated
  • Any contribution (whether financial or otherwise) by the plaintiff to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the plaintiff
  • Any provision made for the plaintiff by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate
  • Any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person
  • Whether the plaintiff was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and the extent to, and the basis on, which the deceased person did so
  • Whether any other person is liable to support the plaintiff,
  • The character and conduct of the plaintiff before and after the date of the death of the deceased person
  • The conduct of any other person before and after the date of the death of the deceased person
  • Any relevant Aboriginal or Torres Strait Islander customary law

How do you contest the will?

Essentially, it is necessary to show that you an eligible person, that your claim was brought within 12 months from the date of death and that the will did not adequately provide for your proper education, welfare or advancement in life.

The court will look at all of the relevant factors in the legislation such as the nature of the relationship, the nature and extent of the estate and the financial resources of the applicant to name but a few factors.

It is worth noting that outside of the legislation there may be other avenues to contest a will such as where the maker lacked capacity or was coerced into making the will.

Cost of contesting a will?

There is no easy, or one size fits all answer to this question.

You should obtain a detailed estimate from your lawyer as to the likely costs. In some of the small to medium sized matters that we have acted in, the costs were about:

  • $45,000 for solicitor's fees; and
  • $10,000 for counsel's fees. 

However, as more plaintiffs are added and the amount of evidence increases the costs could increase.

Some lawyers to take these cases on a contingency basis (no win no fee) and whilst that may be attractive at first it is important to realise that the risks of taking on such matters are often built into the fees potentially causing the plaintiff's to pay more. 

It is worth remembering that there may be additional costs such as Court filing fees which could be more than $1,000 and there may also be hearing allocation fees (and mediation fees). 

Defending a contested will

In cases where the applicant isn’t an eligible person and the claim is brought within the 12 month period from the date of death it may be somewhat easier to stop someone bringing a claim.

Otherwise, it will be necessary to delve into the details of the case and put forward sufficient evidence to permit the court to meaningfully exercise its discretion.

In many cases it is necessary to prepare lengthy affidavits that deal with all the relevant factors that a court may consider in deciding the case.

It should also be mentioned that the legislation permits contracting out of the legislation provided specific requirements are met.

How to stop someone contesing a will

The role of the defendant (usually the executor or administrator) is to uphold the will. Where an unmeritorious claim is made against the estate, the defendant will probably want to defend the estate against the family provision claim. 

Unsurprisingly, the defendant's affidavit is also quite extensive and covers a great deal of material that includes:

  • The executor / administrator's views about who is an eligible person
  • Details of the deceased, with a focus on the inventory of property and in particular the nature and extent of the assets and liabilities held. It is also necessary to look at what, if any, transactions were relevant transactions (that could potentially be subject to a notional estate order). Other matters of importance are what estate has been distributed and the value of the gross distributable estate. 
  • Contrary to what many executors think, when countering the claims brought by a plaintiff the court will not be interested in irrelevant material about the family history. Some things are important though: testamentary intentions, and contemporaneous statements by the deceased regarding the plaintiff's claims on the bounty especially if there was estrangement. 

Orders the court can make when contesting a will

Under the legislation, the court order must specify certain matters such as:

(a) the person or persons for whom provision is to be made, and

(b) the amount and nature of the provision, and

(c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and

(d) any conditions, restrictions or limitations imposed by the Court.

Also, the provision is often made by way of:

(e) a lump sum; 

(f) periodic payments;

(g) by the application of identified property;

(h) the granting of an interest

(i) or as the court thinks is appropriate. 

Legal advice about contested wills

To obtain legal advice about your rights speak with our will dispute lawyers in Sydney, NSW.

Resources: will disputes

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