What is the process for contesting a will in NSW?

Date: Feb 03, 2015

Contesting the will of a recently deceased relative is a major decision for individuals to undertake. Not only will people need assemble a case that supports their claim, they will also need to follow the correct procedures in order to give themselves the best chance of success.

For individuals in this position, there are a number of steps involved in contesting a will. One of the first and most important of these is to contact a wills and estates lawyer to determine if you have a valid case. Once you have done this, some of the important following steps include:

Assembling the relevant information

In order to be successful in contesting a will, individuals will need to assemble evidence to support their application. This process will depend on the type of will dispute an individual is looking to pursue.

For example, if you are making a family provision claim, it will be necessary to compile information that demonstrates your relationship with the deceased and the insufficiency of any existing provision. A dispute based on the legitimacy of the will, on the other hand, will require a very different set of evidence.

Contacting the executor of the estate

Executors are required to publicly advertise that the deceased's estate in a local paper or on the NSW Supreme Court Online Registry and to allow a minimum of two weeks before applying for probate. At this time, individuals who wish to contest the will need to get in contact with the executor and advise them of their intention.

At this stage it will often be possible to resolve the estate dispute through the mediation process with the executor. If a resolution cannot be reached, the case will need to go before the NSW Supreme Court.

Legally resolving an estate dispute

In the event that a case does progress to the NSW Supreme Court, it will fall on the Judge to determine the success of your estate dispute and, if successful, the amount of provision that should be made for you from the estate. This will require a close

consideration of the evidence provided to support your claim, such as, in the case of a family provision claim, evidence that you have not been adequately provided for in the deceased's will or under the intestacy provisions of the Succession Act 2006.

For more on the process of contesting a will, or to begin the process yourself, make sure to get in contact  with a wills and estates lawyer.