Challenge a Will NSW
Contested Estates Division
Free consultation: 1800 529 529

Will challenge FAQ

 

Do you accept all cases?

A: No we do not. Regrettably the Contested Estates Division is unable to act for all claimants. Once your case has been assessed our experienced estates lawyers will contact you to advise whether we are able to accept your case. Click here to commence the online assessment.

 

Do you act on behalf of executors in defending an estate?

A: Yes we do. We have detailed knowledge of this area of law and currently represent a number of executors in proceedings to defend an estate from challenge. 

 

Can I still challenge the Will if I have been left something in the Will?

A: Yes you can. The Court is empowered to make orders for further provision from an estate, so being a beneficiary is no bar to making a claim. The value of the gift bequeathed under the Will is a relevant consideration for the Court when determining whether the provision made in the Will was inadequate. 

 

Who can challenge a Will in NSW?

A: In NSW there are 7 categories of persons who can challenge a Will. Learn more about these categories here. A Will can also be challenged on the grounds of duress, fraud or lack of testamentary capacity without the requirement of having to fall into one of the 7 categories.

 

Can I challenge an estate if there is no Will?

A: Yes. If a deceased person did not leave a Will, or if the named beneficiaries did not survive the deceased person then the estate passes according to the statutory rules of intestacy. Often these rules can operate unfairly and so it is common for an eligible person to challenge an estate in circumstances where there is no Will.

 

What are Factors Warranting?

A: There are a number of hurdles to overcome before a person can challenge a Will in NSW. For certain categories of eligible persons the Court must be satisfied that there are factors which warrant the making of an order to disturb the deceased's person's wishes. Factors Warranting means that there must be circumstances which give the eligible person the status of a person who would generally be regarded as a natural object of testamentary recognition of the deceased person.

 

What if the deceased person did not have capacity to make a Will?

A: A Will is only valid if it was made by someone with testamentary capacity at the time of making of the Will. Further details can be found by reading our dedicated page by clicking here.

 

There are no assets in the estate apart from joint assets and superannuation, can I challenge the Will?

A: Yes, if you meet the other criteria to challenge a Will joint assets and superannuation may be available for distribution to a successful claim by having those assets designated 'Notional Estate'.

 

What is 'Notional Estate'?

A: Assets held solely by a deceased person will form part of the Probate application to the Court. Despite this, in many instances the major asset of the deceased person moments prior to death was property owned as joint tenants, or superannuation. In NSW the Court is able to make an order designating assets which do not typically form part of an estate of a deceased person to satisfy an order for provision, or further provision. Those assets are said to form part of the 'notional estate'. Certain transactions made or entered up to 3 years prior to the date of death can also be designated notional estate, so the fact that the deceased held no assets on their death does not necessarily mean that there is no utility in challenging the Will.

 

How long do Court proceedings take after I have commenced proceedings?

A: Most proceedings are settled prior to a final defended hearing. If the case is not settled generally a final hearing will take place between 1-2 years after the application is filed. For simple cases the hearing can take place must sooner, while more complex cases require further time for all parties to prepare their case, meaning that a hearing may not be set until much later.

 

Do I have to attend Court?

A: If the case proceeds to a final defended hearing you will be required to attend Court for the hearing. Apart from the final hearing the only other time that you will be required to attend Court is during the compulsory mediation which is scheduled 3-6 months after the proceedings are commenced. The mediation is attended by both our office and the legal representatives for the estate. The mediation presents an opportunity to settle the case without having to proceed to Court. Because our lawyers represent you at the mediation we attempt to negotiate a suitable settlement on your behalf as instructed by you.

 

Can I challenge a Will if I am out of time?

A: Yes. In NSW proceedings to challenge a Will by seeking a 'Family Provision' order must be commenced within 12 months from the date of death, unless the Court otherwise orders on sufficient cause being shown. 'Sufficient cause' may be established in a number of ways, and after considering all of the circumstances, including whether the estate has been distributed. If you are out of time, or if the 12 month limitation period will expire shortly then please contact our office as soon as possible for a free no obligation assessment of your case, including whether there is sufficient cause to extend the 12 month period in which to challenge the Will. 

 

I cannot afford a lawyer, how do I challenge a Will?

A: Challenging a Will or contesting an estate is a complex area requiring expert legal advice from those working in this area of law. If your case is accepted by the Contested Estates Division then there are no upfront or ongoing legal costs as all costs are paid at the conclusion of the matter. To find out more about costs click here.

The Contested Estates Division cannot accept all cases so to see if our lawyers can assist you contact us or commence an online assessment by clicking here.

 

Do I have a case to challenge a Will?

A: Challenging an estate is a complex area of law. Before we can advise you whether you have a case our lawyers will need to assess your circumstances. If you wish to know whether you have a case to challenge a Will in NSW then commence the online assessment by clicking here. Your case will be assessed by an experienced estates lawyer from our Contested Estates Division, and at no cost.

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