Contesting a Will in NSW

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When somebody close to you dies, and you feel you have been unfairly left out of the estate, you will need to know how to contest a will. 

There are several steps involved in contesting a will, and they must be completed within the NSW time limit to be considered by a Court.

Not everybody can contest a will and interested parties have to meet specific requirements to make a claim.

Contesting a will can be a complicated legal process with differing laws across Australian states.

If you believe you are eligible to make a claim, you should make contact with a qualified lawyer as quickly as possible.

Contesting a Will Eligibility

In New South Wales, not everyone has the legal standing to contest a will. Generally, the following parties are considered eligible:

  • Immediate Family Members: Spouses, children, and, in some cases, former spouses of the deceased.
  • Dependents: Individuals who were financially dependent on the deceased at their death, including certain family members and sometimes unrelated individuals who can prove the deceased had a responsibility for their financial well-being.
  • Beneficiaries: Those named in the current will or previous wills may have been unfairly removed or whose legacy has been significantly altered.
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Evidence Needed to Contest a Will

Contesting a will requires substantial evidence to support the claim that it does not accurately reflect the deceased’s intentions or was made under circumstances that invalidate it.

Key pieces of evidence typically include:

  • Documentary Evidence: Copies of the will in question, any previous wills, correspondence between the deceased and legal advisers, and any documents that might shed light on the deceased’s intentions.
  • Witness Testimony: Statements from witnesses present at the signing of the will or those who had conversations with the deceased about their testamentary intentions.
  • Medical Records: To challenge a will on the grounds of lack of testamentary capacity, evidence of the deceased’s mental state through medical records and expert testimony is crucial.
  • Forensic Evidence: In cases where forgery is suspected, handwriting experts might be employed to analyze the will’s signatures.

Grounds for Contesting a Will

The second thing you will want to know when you ask, how to contest a will, is if you have sufficient grounds for contesting a will.

Anybody considered an interested or eligible party, must also have reasonable grounds for contesting the validity of a will. In NSW, a will cannot be challenged simply on the fact that you feel it is ‘unfair’.

In NSW, a will can be contested on the following grounds:

  • The will is not an accurate reflection of the deceased’s (testator’s) true intentions
  • The will excludes those who were financially reliant on the will-maker at their time of death or excludes someone who should have been provided for.

The most common reason a contest to a will goes ahead is on the basis that the testator was not acting freely at the time they made their will. There can be several reasons for this, including the will-maker being unduly influenced by somebody else or being a victim of fraud.

In cases where the will excludes someone who was financially dependent on the will-maker at their time of death, they will usually want to know how to contest a will, and then they will file a family provision claim.

evidence need to contest a will | Justice Family Lawyers
Time Limit to Contest a Will | Justice Family Lawyers

Time Limit to Contest a Will

The time limits on contesting a will in NSW are as follows:

  • For deaths on or after 1 March 2009 the time limit is within 12 months of the date of death (previously 18 months)
  • If the date of death is uncertain, the Court will determine a reasonable time or date

It is unusual for the Court to budge on these time limits, so it’s essential to speak to a lawyer as soon as you believe you have a claim to contest a will.

How to Contest a Will

While the steps for contesting a will may vary slightly in individual cases, the process will be similar for most people.

  1. The first thing to do it to confirm the above-mentioned points: you are eligible to contest a will, are within the time limit for your state and have legal grounds for making a claim.
  2. Secondly, you should assess whether you can prove that you ‘need’ the money, particularly in comparison to other potential beneficiaries.
  3. If you still think you have grounds to contest the will, you should talk to a lawyer who can verify the legitimacy of your case. From here, your lawyer will begin the process of formally contesting the will.

They will investigate the estate, which usually involves sending the executor a letter requesting relevant information about the estate.

Your lawyer will look over the will and establish the various assets and liabilities held by the estate.

They will prepare a series of documents including a written statement about your involvement with the deceased, your current finances and state of health.

Your lawyer will then contact the executor of the will, and in many cases, the executor will then make an offer to settle.

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Costs of Contesting a Will

Determining the amount it will cost to contest a will in NSW can be a complicated process.

The costs involved with disputing a will in NSW will vary depending on factors such as:

  • Whether you are contesting the validity of the will or are applying for a family claim provision
  • How complicated your case is/becomes
  • Whether you can settle your claim before it reaches court

While most lawyers will make every attempt to postpone any court fees associated with your case until settlement, it is likely there will be some, small, unavoidable costs along the way.

If your claim is successful, the costs of your case will generally be covered by the estate.

If a will is unsuccessfully challenged based on fraud or undue influence, and it is shown that there were no reasonable grounds for a challenge, the court will rarely order that the estate must pay the unsuccessful party’s legal costs.

When contesting a will in NSW ends up in court, the legal costs can be run into the tens of thousands, so it important to make sure you have a strong legal case before making a claim.

The average cost to contest a will would be $5,000 – $10,000 if the matter stays out of court.

If the matter goes to court, the average cost to contest a will would be $20,000 – $100,000.

Although the costs of contesting a will may need to be covered upfront, if your case is successful, your costs may be reimbursed by the estate.

Some law firms may offer a no win no fee service once they have assessed the merits of your case.

Family Provision Claim Cost to Contest a Will

In the case of a family provision claim that is finalised through the process of mediation, the average cost will be around $30,000.

However, if you end up in court, this can increase to more than $50,000.

As there are considerable costs associated with contesting a will, it is worthwhile assessing the estate assets and whether a case is likely to be financially favourable.

Solicitor’s Costs: Hourly or Fixed Rate

When deciding on a solicitor to represent you in contesting a will, it is advisable to research several options.

Most solicitors will charge $300 – $500 per hour and will quote you for their work accordingly.

Things to keep in mind when selecting a solicitor include:

  • What is their experience in family law?
  • What is their track record in cases or contests to a will? 
  • Does the solicitor charge an hourly or fixed rate, and what will be the overall amount?

The difference in legal costs amongst will dispute lawyers in Sydney can run in the tens of thousands, so it is crucial to do your due diligence to make sure you engage a trustworthy, competitive legal team.

Solicitor/Client Costs vs Party/Party Costs

When making a contest or challenge to a will, you might come across the terms solicitor/client costs and party/party costs.

Solicitor/client costs refer to 100% of the fees owed to your lawyer for your legal representation.

Party/party costs are the costs another party must reimburse you for your legal fees.

Party/party costs usually work out to be about 70% of your overall legal fees.

Who Pays for the Cost of Contesting a Will?

Who pays for the legal costs associated with contesting a will depends on a few factors.

If the matter is settled in the mediation process (i.e. before it reaches court), you will receive an agreed-upon amount from the estate.

From this, you will need to pay 100% of your legal fees, or Solicitor/Client costs.

If your case cannot be settled in mediation and progresses to court, the situation will be slightly different.

If your claim is successful, the court will generally rule that the estate must pay party/party costs or ‘ordered’ costs.

This will usually cover about 70% of your solicitor/client costs. You will then need to pay the rest out of your allotted share of the estate.

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How to Stop Someone Contesting a Will in NSW

While eliminating the chance of someone contesting your will is not possible, you can take steps to diminish the likelihood of such a dispute arising.

Get Proper Advice When Drafting Your Will

 

It is crucial when drafting your will that you understand firstly, how to ensure your will is legal and valid and secondly, who may reasonably have a claim against your estate after you die.

Although employing a solicitor to draft your will is slightly more expensive than using a DIY kit, or attempting to write it yourself, in the end, it could potentially save your estate hundreds of thousands of dollars.

Getting proper legal advice means that your will should be considered legal and valid at the time of your death.

This is important because if your will is deemed to be not legally binding, it becomes exposed to a higher likelihood of claims.

A qualified wills and estate lawyer should also be able to assist you in drafting a will that is set out in such a way as to minimise the risks of a claim.

For example, one of the most effective and often overlooked strategies to employ when attempting to stop someone contesting your will is to make adequate provision for any people you believe may make a claim against your estate after your death.

While you may not see this as ideal, providing for them in this way will make them think twice about contesting your will and likely prevent such a claim being made.

 

Structure Your Assets

There are various ways you can structure your assets during life to protect them being contested during death.

For example, if you own a property, or have a mortgage that is the name of yourself and another person, the property will pass to them upon your death without there having to be any reference to your will or estate.

While this can be a very effective method of ensuring your property passes to who you intend it to in most states and territories, in NSW, the concept of notional estate makes this more contentious.

When a family provision claim is made in NSW, the Succession Act contains notional estate provisions. These notional estate provisions allow the ‘clawing back’ of assets to the deceased’s estate for the purpose of a family provision order.

This can mean, that in NSW, even if your property was co-owned upon your death, it can be deemed to be seen as part of your estate upon death.

In this way, contests to a will can be more difficult to prevent than in other states.

However, there are timeframes related to these property transactions, with the following laws governing what can be deemed as notional estate in NSW:

  • Any transaction that took effect within three years of the deceased’s death and was entered into to deny or limit provision to an eligible applicant.
  • Any transaction that took effect within one year of the deceased’s death at a time when the deceased had an obligation to provide adequately for the claimant. This obligation must be ruled to be substantially more significant than the obligation of the deceased to enter into the applicable property transaction.
  • Any transaction that took effect after the deceased’s death. Sale of the property by the co-owner for example.

 

Transfer Your Assets Before Death

Transferring your assets into your preferred heirs’ names before your death is another strategy to stop a claim being made against your estate.

However, this can be a risky strategy for the following reasons.

Firstly, as the transfer of your assets may be regarded as gifts by Centrelink and the Australian Tax Office, you may lose your rights to a pension or be hit with a large capital gains tax bill.

Secondly, in NSW, if the transfer of these assets occurs within certain timeframes, they may again be subject to the concept of notional estate and a claimant may be able to have these transactions set aside.

When considering any of these strategies above, you should always get professional advice from an accountant and lawyer experienced in the relevant laws in your state.

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Example of Contesting a Will – The Case of Colleen McCullough

Colleen McCullough was a famous Australian author, known for her best-selling novel The Thorn Birds, which sold over 33 million copies worldwide.

At the time of her death in 2015, McCullough’s estate was estimated to be worth several million dollars.

The distribution of McCullough’s estate became a bitter legal dispute that was played out in the Supreme Court of NSW, garnering much attention from the Australian media.

Contesting a will was costly, and resulted in a bitter dispute between McCullough’s husband of thirty years, Ric Robinson and her executor, Selwa Anthony.

The case was made quite complicated since McCullough made several wills throughout her lifetime.

Two wills, made within 6 short months of each other, were at the centre of the dispute.

The first will, dubbed the ‘Oklahoma’ will, was made in July 2014 and named the University of Oklahoma Foundation as the sole beneficiary to McCullough’s multi-million dollar estate.

The second will, signed only a few short months later in October 2014, named her partner, Mr Robinson, as the sole beneficiary.

McCullough’s friend and executor, Ms Anthony, told the court that McCullough deliberately cut Robinson out of her will in 2014 after finding out Robinson had ‘taken a mistress’ and ‘spent all the money’.

The plaintiff’s lawyer, Kim Morrissey, also gave evidence to the court, recounting an episode on June 24, 2014, where the author called the police to her home and told officers that Mr Robinson and his mistress entered her bedroom and were aggressive towards her.

Ms Anthony accused Mr Robinson of taking advantage of McCullough’s ill health to make her re-write her will, with the case resting on whether Robinson used undue influence to coerce McCullough to change her will and name him as the sole beneficiary.

McCullough’s solicitor, Piria Coleman agreed with Ms Anthony that the ‘Oklahoma’ will was the genuine one.

In McCullough’s last few weeks of life, she was visited several times by a GP, Dr Robert Challender, who prepared a letter for Robinson, stating that while McCullough was in bad shape physically, her mental state was good and she was ‘completely able to make well-considered decisions’.

Robinson provided a copy of this letter to Coleman only two short weeks before McCullough’s death. Coleman stated that the document was prepared in a calculated attempt by Robinson to prove McCullough’s testamentary capacity, should anyone come to question the second will.

Despite finding that Robinson was not a ‘wholly reliable witness’, New South Wales Supreme Court Justice Neil Rein found that Ms Anthony had not sufficiently established that Mr Robinson coerced his wife into signing the documents.

Justice Rein’s judgement ultimately found that ‘Colleen McCullough intended to bequeath her entire estate to her husband,’ with the second will being found to be valid.

Each party was ordered to bear their own costs.