How to Contest a Will in NSW

If you have been left out of a will and want to know how to contest a will in NSW then it assists to first determine what type of challenge you wish to make to the will.

Broadly speaking, the contest can go to either the validity of the will itself or the amount of money (‘the provision’) made for you under the terms of the will, or, if there is no will, then under the rules of intestacy.

Understanding whether the contest is about the validity or the provision made in the will, or both, will enable you to best answer how to contest the will. In NSW proceedings involving wills and estates are heard in the equity division of the Supreme Court of NSW in either the Probate list, or Family Provision list.

Probate List

Probate is an application to the Court by the executor of the will to prove the last will. If you wish to contest the validity of the will being propounded then a caveat can be lodged preventing the Grant of Probate being made and proceedings commenced to require the executor to prove the validity of the will. In proceedings of this kind the executor is asked to obtain a grant of probate in solemn form.

The person seeking to prove the will is known as the plaintiff and those opposing are joined as defendants. The Court makes directions for the filing of evidence and at the hearing the Court determines whether the person propounding the will in question has discharged the onus of proof. This onus may be discharged by relying on the due execution of the will, or the surrounding circumstances may require further compelling evidence such as witness statements of the solicitor preparing the will or medical practitioners as to the testator’s capacity at the time.

Family Provision List

The Family Provision list hears proceedings commenced under the Family Provision division of the Succession Act. An application for Family Provision allows certain categories of persons, called Eligible Persons, to apply for an order under Family Provision. Those Eligible Persons are required to prove to the Court that the provision made for them in the will is inadequate for the person’s education, maintenance and advancement in life, based on all of the circumstances and the factors set out in the Act.

Time limits apply in contesting a will in NSW. If a claim is not made within time then the person seeking to contest the will cannot make a successful claim without leave of the Court.

Within this website you will find further detailed information as to each of the requirements for contesting or challenging a will in NSW, although no two cases are alike. So the easiest way to find out whether you particular circumstances are such which would warrant an application to contest a will is to speak with one of our senior contested estates lawyers.

Each year we act for many clients both defending and challenging wills so we have particular expertise in this area and we are able to assess your case quickly and at no cost. We have a number of conveniently offices located in the Sydney CBD, Chatswood, Parramatta, Sutherland and Wollongong but we act for many clients in regional NSW and interstate. Get in touch for your no obligation assessment, free of charge by calling or making an enquiry here.