CHALLENGING A WILL - FREQUENTLY ASKED QUESTIONS

Q. What is a will and when does it take effect?

A.        A will is a statement of a person's intentions as to the disposal of their property after their death. A will only takes effect upon death.

Q. Do I have the right to see the will?

A.        In New South Wales, the Succession Act 2006 which came into effect on 1^st March 2008, provides for certain family members and other persons to inspect the will, whether they are named in the will, or not.       

Q. When should I make a claim?

A.        As soon as possible after the death of the person who left the will. For instance, a claim for provision pursuant to the Family Provision Act NSW, must be brought within 18 months after death, although the Court has discretion in appropriate circumstances to extend that 18 month period.        

Q. Do I need a barrister to contest a will?

A.        You would be doing yourself a disservice not to have a barrister for these reasons:

            i)          The deceased's estate will most likely be represented by a barrister.

ii)         The Court procedure is highly technical and special forms must be used.

iii)         The relevant legal principles have developed over centuries and barristers are trained to deal with them.

Q. What do I have to prove for a successful family provision application?

 A.        If you qualify as an eligible person (see above) then, generally speaking you must show that the deceased person failed in his or her moral duty to provide for you in the will, and that you have a need for financial provision from the estate. Furthermore the estate has to be large enough in value. (Generally speaking, and there are exceptions, careful consideration would be given before commencing proceedings involving an estate of say less than $80,000).     

Q. What happens if I am successful in contesting the will?

A.        The Court normally orders that you receive a sum of money (provision) from the deceased's estate.        

Q. Who pays for my legal costs?

 A.        If you are successful, most of your legal costs are ultimately paid from the deceased's estate, but you have an obligation to pay your own legal costs as the case proceeds and then recover those costs from the estate after the case is finished.    

Q. Would you be prepared to wait till the case is finished before requiring payment of your fees?

 A.        I may be. It would depend upon the strength of your claim and your capacity to pay my fees. In other words, your chances of a successful outcome in my opinion either after a court hearing or by way of an out of court settlement.     

Q. If I am an executor and/or a beneficiary under a will would you be prepared to help me defend the will and retain the bequests to me?

A.        Yes, again it depends largely upon the strength of the claimant's claim.

Q. Would I be actually "challenging" the will if I made a claim for provision?

A.        Not really, if the will is validly made, the will stands. If you make a claim you are, in fact, seeking a share of the estate, but the will itself is unchallenged.   

Q. Is it ever possible to actually contest a will?

 A.        Yes, for instance if the deceased person was not of sound mind (lacked "testamentary capacity") when the will was signed (this would normally require a medical evidence); or if the will was altered by someone else without the deceased person's knowledge and permission.

Q. How would I challenge the will in those circumstances?

 A.        Provided you act quickly enough after death, and you have sufficient interest in the estate (such as a family member or beneficiary), and before the Court makes an order granting probate, (or even shortly after) then you should seek the urgent assistance of a lawyer. If you contact me first, I will discuss this with you.

Q. What would a lawyer do then?

A.        The lawyer will with my assistance if I am briefed to help, oppose the granting of probate by the Court, to the person named as executor in the will to be challenged.

Q. What happens if "will" is not valid, as a result of the challenge?

 A.        An earlier will (if there is one) might be admitted to probate, or if there are no valid wills, the deceased's property is divided up in accordance with the intestacy laws.

Q. What does that mean for me?

 A.        If you belong to the class of people defined in the intestacy laws e.g. parent of a deceased child who died without leaving a partner or children, you may be entitled to a share of the estate, or in some cases, all of the estate.

Q. Can I contact you for assistance about contesting a will?

A.        Yes, my contact details are below. A brief email is best setting out the circumstances.  I would need to know:                                                                       

i)          Your relationship to the deceased

ii)         Date of death and terms of will

iii)         Where the estate is located, and its approximate value

iv)        The basis of your moral claim, and the general financial circumstances of yourself and your spouse (or partner) if you are in a domestic relationship.

You should understand though, that I am a barrister. I act for clients who are referred to me by a solicitor, and my contract is with the solicitor. However, if I believe your claim has merit, I am prepared to discuss it with you by phone (or in person) directly with no obligation. If you wish to take it further, then I can refer you to a solicitor who may then instruct me on your behalf, depending upon your instructions. If you already have a solicitor, then, subject to my normal conditions, I may be available to accept a brief from that solicitor on your behalf. I will then provide Advices to the solicitor, assist the solicitor to prepare the court documents such as affidavits (sworn witness statements), and appear at the hearing in court, instructed by a solicitor on your behalf.

 These pages are intended to be a resource for lawyers and laypersons. Any content on these pages is not intended to be, nor is it a substitute for, legal advice. If you have a problem, and the resources here do not direct you to where you need to go, see a lawyer. It is intended that this page will contain only resources, not legal advice of any kind.