Questions & Answers

1. Contesting or disputing a will – What does this mean?

You can contest or dispute a will if it is unfair. The court can vary the provisions of the will or order that the estate (property, money and possessions) be redistributed. This is called a family provision claim and it is made to provide for a person’s maintenance, education and advancement in life.

You may also contest the validity of a will – that the maker of the will was not competent or that its contents were not known or approved of by the deceased, that there has been undue influence like bullying in sighted; fraud, or that the will is not properly witnessed.

If there is no will, the Succession Act determines how the estate is distributed. This can also be contested.

2. When must I contest or dispute a will?

Urgent legal advice is important. There are strict time limits for disputing or contesting a will which is referred to as making a claim. You should seek urgent legal advice. For a death that occurred on or after 1 March 2009 you have a year from the death to contest or dispute the will. In some circumstances you can get the time limits extended e.g. If you did not know the person had died, you were not aware you had to make the claim within the time limit or you have been threatened in relationship to the will.

It is very important you seek advice as the timing issues can be critical. Call Turner Freeman on 1800 800 088 to speak to an expert, obligation free.

3. Who can contest or dispute a will – Make a claim?

“Eligible persons” who may apply to the Court for a family provision order in respect of the estate of a deceased person:

  1. a person who was the wife or husband of the deceased person at the time of the deceased person’s death,
  2. a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
  3. a child of the deceased person,
  4. a former wife or husband of the deceased person,
  5. a person:
    1. who was, at any particular time, wholly or partly dependent on the deceased person, and
    2. who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
  6. a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

4. What if I am not eligible?

You have no right to contest a will if you are not an ‘eligible person’. However there may be other ways you can seek a fair result or prove the will is invalid. Call Turner Freeman’s toll free number 1800 800 088 to arrange an obligation free discussion.

5. What if there is no will?

If a person dies without a will it is referred to as dying ‘intestate’. The distribution of the assets of the deceased is determined by the state according to legislation. However if the will is unfair it can be challenged.

6. Is a court case necessary?

Negotiation can often solve the dispute but if resolution can’t be achieved you may need to go to court to make sure you get a fair portion of the estate. Mediation is required as part of the court process.

Most cases are settled, and it is rare for the matter to have to go to court.

7. What does the court process consider?

  • Whether as an eligible person your relationship with the deceased means you should have been a beneficiary.
  • The nature and duration of your relationship with the deceased
  • If any previous payment or benefit is adequate for your maintenance, education and advancement in life.
  • Contributions you made, both financial and non-financial, to the deceased.
  • The claims and or needs of other eligible persons or beneficiaries.
  • Your financial resources and earning capacity.
  • The size of the estate. (For instance if there is only a small amount in the estate it is possible that regardless of your acknowledged need or right you may not receive what you had sought.)
  • The financial circumstances of people with whom you cohabit.
  • Aboriginal or Torres Strait Islander customary law (where relevant).
  • Any conduct that you might have engaged in which would prevent you from being a beneficiary (e.g. you engaged in fraud against the deceased).

The above criteria are generalized because we cannot provide specific advice on whether you might have a claim until we can determine all factors. To help us determine that give us a free call on 1800 800 088

8. Can I claim anything that is not in the will?

You might be able to claim assets which do not strictly fall into the deceased’s estate. For example:

  • Assets given away or sold for less than their value within three years of the death;
  • Deceased’s superannuation or life insurance;
  • An asset (such as a house or bank account) held jointly with another person;
  • A loan the deceased person had made but forgiven on their death, or within three years of their death.

9. Is there a way of knowing how much I might receive if I contest a will?

No, but if you are an ‘eligible person’ the court will consider your need: whether you received adequate provision for proper maintenance, support, education and advancement in your life.

Call us on 1800 800 088 if you would to discuss this and the outcomes of any relevant cases.

10. How does the court determine your ‘need’?

To determine ‘need’ the court initially considers whether your day-to-day maintenance, education and advancement in life have been provided for adequately under the terms of the will. There is a moral obligation to an ‘eligible person’.

The court will review your finances, debt, mortgage repayments, medical expenses (including prospective future medical expenses), education needs (including the education needs of your children), vehicle expenses, rental situation and place of employment (including your salary and length of employment).

The court will then make a decision on whether further provision should be made for you.

It is a complex process and we can advise you if you have an adequate level of need to be able to successfully contest the will. 1800 800 088 is our free call phone number.

11. What about legal fees?

Call Turner Freeman on 1800 800 088 and ask about our fee policy or view it online.

12. What if I live in a different state from the deceased?

The law which governs the will and estate of the deceased is the law of the state where the property and assets are. Even if you live in a different state Turner Freeman can still help you. Call 1800 800 088 and talk about how we can assist you.

13. What if I am left out of a will?

Even though the law recognises a person’s right to choose who will inherit his/her estate, there are often good reasons why you should contest the will.

In most cases the deceased will leave that property to family: children, spouses, life partners or parents. But in those cases where the estate has been left to third parties such as doctors, friends, a single child, charities or someone outside the immediate family, if you are an ‘eligible person’, The Succession Act 2006 (NSW) allows you to contest the will with a Family Provision Claim. ‘Eligible persons’ are –

  1. a person who was the wife or husband of the deceased person at the time of the deceased person’s death,
  2. a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
  3. a child of the deceased person,
  4. a former wife or husband of the deceased person,
  5. a person:
    1. who was, at any particular time, wholly or partly dependent on the deceased person, and
    2. who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
  6. a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

14. How do I make a Family Provision Claim if I have been left out of a will?

You must establish that you are an eligible person and you must show the court that there is some reason or need for you to be included and receive some benefit. The court will review your financial situation, and if need is established, alter the last will and testament of a deceased.

As an eligible person there is a moral obligation on the deceased to provide for your maintenance, education and advancement in life.

What has to be established is that given your financial situation and position in life, the deceased should have provided you with a legacy to allow you to have a better standard of living.

15. How and when is ‘moral obligation’ determined?

If you have proved are an eligible person i.e. life partner or de-facto of the deceased, child, adopted child or children of a de-facto relationship the deceased was in at the time of death, moral obligation is also proven.

However if you and the deceased were estranged and there is no need that would lead to a changing of the will, then the moral obligation may not be recognised.

If it can be shown to the Court that some contact was maintained between yourself and the deceased, however occasional, this may satisfy the test which places a moral obligation on the deceased to provide for your maintenance, education and advancement in life.

Even if you have been estranged from your family for various reasons, or the deceased did not even know of your existence, this does not prohibit you from making a claim under the Succession Act. Existence or non-existence of a relationship with the deceased is not the deciding factor in claims on the estate of a deceased.

You must prove your financial situation along with all medical and education needs, and your lawyers must also outline to the court the financial situation of all other persons who may have a claim on the estate of the deceased.

Once all these factors have been taken into consideration the court will determine if the needs of the estranged child are sufficient for the court altering the last will and testament of the deceased.

Relevant court case

In the matter of Nicholls v Hall & Ors [2007] NSWCA 356, a decision of the New South Wales Court of Appeal, ‘Bare Paternity’ was determined to be sufficient to warrant an award under the Family Provisions Act. Justice Young found that:

“Accordingly, the picture painted by the evidence, which I accept, is that the plaintiff had no contact with his father for the first 36 years of his life. Thereafter there were 11 telephone calls in eight years. There was no exchange of presents at birthdays or Christmas, not even an exchange of cards. The plaintiff only ever saw the deceased on two days in 1995. He did not see the deceased at all nor make any contact with him for the last two years of the deceased’s life and he never attended the funeral. Furthermore, he appears to have given an excuse for not attending the funeral which was not genuine.”

Their Honors Mason P, Hodgson JA and McColl JA found that:

“In assessing the strength of moral claims, the Court can have regard to (1) all aspects of the relationship between the applicant and the deceased, and (2) all aspects relating to needs of the applicant. These matters would be considered having regard also to (3) the size and nature of the estate, and to (4) other legitimate claims on the estate, each of which would also involve some consideration of the relationship of a claimant to the deceased and the needs of that claimant. When a moral claim has been assessed in that way, that does not determine whether an order should be made, but only informs what the Court would find to be “adequate” and “proper”. Certainly, in our opinion, a finding that an applicant has been left without “adequate provision” for “proper maintenance” does not necessarily mean that the deceased failed in any obligation; although it can loosely be expressed in terms that there was a moral claim that, in the event, was not met.

There are some statements in the cases that could be understood as meaning that, if there is nothing more than “bare paternity” in factor (1), the relationship between the applicant and the deceased, then the applicant cannot succeed. In our opinion, such an understanding would be plainly wrong. Even if a deceased never even knew of the existence of a child, if that child had a strong case on the other factors (that is, needs, size of estate and lack of competing claims), a court could find that that child was left without adequate provision for proper maintenance.”

16. Can step children contest a will?

Step children are not prohibited from making a Family Provision Claim, however they do not have an automatic right. They must establish that they are an ‘eligible person’ who was –

  • Wholly or partly dependent upon the deceased person,
  • A member of a household of which the deceased person was a member and was dependent on the deceased.

17. As a grandson or granddaughter can I claim on their estate?

Grandchildren are not automatically ‘eligible persons’.

You do not have an automatic right to approach the court for provision from the estate of a deceased grandparent but you can make a Family Provision Claim, if it can be established that you are an ‘eligible person’. A person –

  1. who was, at any particular time, wholly or partly dependent on the deceased person, and
  2. who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,

The dependency can be both a financial and emotional dependency, however generally an award will only be made when the role of the grandparent is more akin to a parental role. Occasional financial gifts do not qualify.

If it can be shown that you were dependent on the deceased, and you were a grandchild of the deceased, you may be able to succeed in a Family Provision Claim.

18. How do I establish my dependency?

Generally the court will look at your financial dependency on the deceased. This ranges from paying for education to regular purchase of clothing or some other form of monetary assistance.

Although financial assistance is the most common form of dependency recent decisions have taken emotional dependence into consideration.

Relevant court cases

Ball v Newey (1988) 13 NSWLR 489

Samuels JA said: “While it is true that here we are concerned with financial dependency and not emotional dependence, the whole relationship between the appellant and the deceased must be examined.” 

Petrohilos v Hunter (1991) 23 NSWLR 559,

Hope A-JA said:“The word “dependent” is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance, young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that “‘Dependent’ in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed”.”

“Surely a mother’s services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense, they are valueless, is simply wrong.”

“The same considerations apply to a step-child or his or her step-mother, when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example, by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period.”

If it can be shown that you are dependent on the deceased you may be able to succeed in a Family Provision Claim. There are many forms of dependency and each case is determined on its own facts the applicant must establish that they have a particular dependency warranting the court to make provision for them from the estate

19. Can I claim on my uncle’s estate?

As a nieces or nephews you are not automatically an ‘eligible person’. You must establish you are a person –

  • At any particular time, wholly or partly dependent upon the deceased person, and
  • At that particular time or at any other time, a member of a household of which the deceased person was a member.

You may be able to succeed in a Family Provision Claim if you can show you are dependent on the deceased, and were at some point in time part of their household.

20. Can I claim on my friend’s estate?

Friends are not automatically eligible persons’. You must establish that you are an ‘eligible person’.

A person:

  • who was, at any particular time, wholly or partly dependent on the deceased person, and
  • who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member.

21. I was left out of the will even though I’d been promised something before the person passed away.  What can I do?

There are some cases when a deceased person, prior to death makes a promise that in return for a services such as care in old age or some other form of maintenance, a particular reward or item or monetary sum will be left to you. For example when you have lived with the deceased and rendered care to the deceased, or you and the deceased each cared for the other, you may be entitled to make a family provision claim on the basis that you were a member of the deceased person’s household.  In some cases you may be a person with whom the deceased was living in a close personal relationship.  In such circumstances you may be eligible to make a family provision claim.

In the alternative there may be some rarer occasions where a Court might consider you to be a creditor or that the estate holds some item or benefit on trust for you.

Consideration in such circumstances must be the subject of a detailed case assessment by us.

22. I wasn’t left out of the will but it was not what I had been promised.  Can I do anything?

There are some cases when a deceased person, prior to death makes a promise that in return for a services such as care in old age or some other form of maintenance, a particular reward or item or monetary sum will be left to you. For example when you have lived with the deceased and rendered care to the deceased, or you and the deceased each cared for the other, you may be entitled to make a family provision claim on the basis that you were a member of the deceased person’s household.  In some cases you may be a person with whom the deceased was living in a close personal relationship.  In such circumstances you may be eligible to make a family provision claim.

In the alternative there may be some rarer occasions where a Court might consider you to be a creditor or that the estate holds some item or benefit on trust for you.

Consideration in such circumstances must be the subject of a detailed case assessment by us.

23. My step mother and father had similar wills.  Since his death, she has now changed her will.  What can I do?

If your parent and a step parent make ‘Mutual Wills’ which have identical terms and paragraphs these wills are binding and can overcome any claim based on the moral obligation to the eligible persons. This can be done to protect step children.

If a parent dies and a step parent changes his/her will, the new will can be challenged and generally the previous will is found to be valid.

The validity of a will

Who can challenge the validity of a will?

You may have the right to contest the validity of a will if:

  • You are a beneficiary in the current will;
  • You were a beneficiary in an earlier will;
  • You would be entitled to benefit if there was no will.

24. Can I challenge a will on the grounds a will was forged or there was fraud?

Yes, however you need to convince a Judge with your evidence and provide the evidence just as you would with a claim for any wrong doing. If you are alleging the fraud you are responsible for proving the fraud or providing the proof of the fraud.

A judge has said in one case: “Fraud, sufficient to result in the invalidation of a testamentary instrument, is concerned with misleading or deceptive conduct. With fraud, there is no overpowering of the volition, no coercion. Whereas undue influence coerces a testatrix, fraud misleads her. Willfully false statements, or the suppression of material facts, intended, either, to gain for oneself benefits under a will, or to prevent benefits being received by a natural object of the testator’s bounty.”

In another case the judge distinguished between undue influence and fraud. He observed that there had been a plea of undue influence in the case but no clear plea of fraud. He also said “If you intend to charge the plaintiff with having obtained the execution of this will by instilling into the mind of the deceased false and delusive notions respecting the conduct of the defendant, this is tantamount to a charge of fraud, and you should have placed on the record a plea charging her with having obtained it by fraud….”

Therefore, in order to succeed with an allegation of fraud, it must be firmly established that the fraudulent conduct had a direct effect on the making of the will and, that the fraudulent conduct was perpetrated by the beneficiary for the sole purpose of receiving a benefit under the will. If issues involving both fraud and undue influence arise on the facts then each ground for contesting the will each must be pleaded separately and properly.

25. Can I claim undue influence on the deceased to challenge the validity of a will?

Yes, but there has been no successful claim for more than 100 years and it is almost impossible to prove to the court’s satisfaction. If it could be established to the court’s satisfaction that a will was made under undue influence, a court may declare the will to be invalid and cannot therefore be admitted to probate. The person who asserts the undue influence must prove or provide the evidence of coercion not just persuasion.

Undue influence or duress may be a threat or in a psychological or physical form.

26. Undue influence – How would I prove that?

It is very difficult to prove. In the case of Wingrove v Wingrove (1885) 11 PD 81 the Judge said: “To be undue influence in the eyes of the law there must be – to sum it up in a word – coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced in to doing that which he or she does not desire to do that it is undue influence. The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness sake, to do anything. This would equally be coercion, though not actual violence. These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of someone else offering them, do not amount to undue influence unless the testator is in such condition, that if he could speak his wishes to the last, he would say ‘this is not my wish, but I must do it’. There remains another general observation that I must make and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.

The onus is on the person alleging undue influence to prove it. It is not sufficient to establish pressure or importuning conduct bearing on the deceased. What is needed for a claim of undue influence to be successful is evidence that the conduct of the person or persons alleged to be exerting pressure was such that it amounted to coercion so that it overbore the free will of the testator….”

27. Who pays the legal fees if I challenge a will?

Call Turner Freeman on our toll free number 1800 800 088 to discuss this and our No Win – No Fee policy.

A case called Shorter v Hodges (1988) 14 NSWLR 698 sets out some ‘rules’ as follows:

  • Where the will maker (testator if male or testatrix if female) has been the cause of the litigation, the costs may be ordered to be paid out of the estate;

If the investigation into the will at probate was instigated for good cause but ultimately proved false, no costs order will be given and the plaintiff and defendant will be responsible for their own costs.

28. Can I challenge a will if I believe the deceased was not capable of making a will – not of sound mind and did not have ‘testamentary capacity’?

A will is invalid if the will maker (testator if male or testatrix if female) is found to be lacking ‘capacity’ at the time the will is made. The test for ‘capacity’ is set out in a very old case called Banks v Goodfellow (1870) LR5QB 549. At the time the testator/testatrix makes the will, he or she must:

  • Understand he or she is executing a will and what that means;
  • Remember and understand generally the nature and extent of his or her property;
  • Comprehends and appreciates any moral obligation/s he or she might have towards friends and family;
  • Be of sound mind – not affected by any disorder of mind that means the will is not one that he or she would have made if of sound mind.

It is possible for a person who has Alzheimer’s disease or dementia to make a valid will during lucid intervals provided s/he satisfies the above four part test, at that time.

The person who wishes to prove the will i.e. ensure it is regarded as valid, must show:

  • The will was duly executed (made) in accordance with the Act;
  • There are no suspicious circumstances.

The person or party seeking to challenge the will must show that the will maker (testator/ testatrix) did not intend to create the will.

29. Who pays the legal fees in cases about challenging a will for lack of mental (testamentary) capacity?

A successful plaintiff or defendant may be entitled to an order for costs. The losing party may be ordered to pay the winning party for reasonable costs. These may not always cover the full amount of legal costs incurred and sometimes there is an argument about this. When this happens, the costs can be assessed by a court appointed assessor.