Is it possible to challenge a will in NSW?

Yes, you can contest a will in Australia. This legal process is often referred to as a ‘family provision claim’. If you believe you have been unfairly treated or excluded from a will, you may be eligible to seek a greater share of the deceased person’s estate.

Who can contest a will?

Typically, individuals eligible to contest a will include:

  • individuals mentioned in a previous will or promised an inheritance
  • the deceased’s spouse or de facto partner
  • children of the deceased
  • former spouses
  • dependents of the deceased.

Can I contest an estate without a will?

If there is no will (intestacy), estate distribution follows specific legal rules. However, you might still be able to contest the distribution if you believe you have been unfairly treated as a dependent.

Contesting a will is complex. Our experienced estate lawyers can guide you through the process. Contact Whitelaw McDonald Lawyers for a free consultation.

  • Sydney: (02) 9238 2120
  • Central Coast: (02) 4343 7000
  • Newcastle: (02) 4941 8999

Complete a free Claim Check to see if you have grounds to to make a claim.

Grounds for contesting a will and obtaining a copy

Common reasons to challenge a will

While laws can vary between states and territories, common grounds for contesting a will in Australia include:

  • Lack of testamentary capacity: The deceased lacked the mental ability to understand the implications of making a will.
  • Undue influence: Someone pressured or coerced the deceased into creating or changing the will.
  • Fraud or forgery: The will is fake or altered illegally.
  • Failure to provide for dependents: Eligible dependents were unfairly excluded or underprovided.
  • Inconsistent with the deceased’s wishes: The will doesn’t accurately reflect the deceased’s intentions.

How to obtain a copy of the will

To get a copy of a will, consider these steps:

  1. Contact the executor: The person responsible for managing the estate can usually provide a copy.
  2. Check with the deceased’s lawyer: They might have a copy on file.
  3. Search public records: Some states and territories allow public access to wills (e.g., Probate Registry in NSW).
  4. Await probate: If the will is being probated, you might obtain a copy during this process.

Note: You might be entitled to a copy if you’re a beneficiary or have a legal interest in the estate.

Understanding your financial responsibilities when challenging a will is crucial.

While it is possible for the estate to cover your legal costs if you are successful in contesting a will, this is not guaranteed.

Several factors influence how costs are allocated:

  • Outcome of the case: If you win, the court might order the estate to cover your legal fees.
  • Specific terms of the will: The will itself might outline provisions for legal costs in the event of a dispute.
  • Your agreement with your lawyer: Options like no win, no fee arrangements can protect you from upfront costs.

It’s essential to discuss your financial situation and legal options with an experienced estate lawyer. They can assess your case and recommend the best approach.

No win, no fee options available

Whitelaw McDonald Lawyers offer no win, no fee arrangements for eligible cases. This can provide peace of mind when considering a will contest.

Contact us today for a free consultation

  • Sydney: (02) 9238 2120
  • Central Coast: (02) 4343 7000
  • Newcastle: (02) 4941 8999
NOTICE: This article is accurate at the time of publication and does not constitute legal advice. Please see our legal notices page for more information.