How to Contest a Will in NSW After Probate Has Been Granted

Introduction

Many people in New South Wales worry that it is too late to contest a will once probate has been granted, but the law does allow for legal action even after this stage. Whether you are a beneficiary or someone who feels left out or unfairly treated, understanding your rights to contest a will after probate is essential for protecting your interests.

Contesting a will in NSW can be a complex proceeding, with strict time limits and specific steps to follow. Consulting an experienced wills and estates solicitor is crucial to ensure your claim is handled properly and to improve your chances of a successful outcome.

What is a Grant of Probate in NSW

A Grant of Probate is a legal document issued by the Supreme Court of New South Wales. It serves to officially confirm the validity of a deceased person’s will and provides the legal authority for the executor to manage and distribute the estate according to the will’s terms. This grant effectively validates the will, signifying that the court accepts it as the deceased’s final testamentary intentions.

The administration process authorised by the grant involves several crucial duties for the executor. These responsibilities include:

• Calling in all of the deceased person’s assets
• Paying any of the estate’s liabilities and debts
• Resolving any legal disputes against the estate
• Distributing specific gifts to the beneficiaries named in the will
• Distributing the remaining balance of the estate to the entitled parties

In most cases, obtaining a Grant of Probate is a necessary step before an executor can gain control over the estate’s assets. Financial institutions like banks, as well as share registries, typically require the executor to produce this document before they will release funds or transfer ownership of assets.

Contesting a Will vs Challenging a Will’s Validity

Making a Family Provision Claim for Inadequate Provision

When a person feels they have been unfairly provided for in a will, they can contest the will by making a family provision claim. This legal action is appropriate if a will excludes you or leaves you with what you consider inadequate provision for your maintenance, education, or advancement in life.

A family provision claim is a claim for financial provision, or further financial provision, from the deceased person’s estate. In New South Wales, you can commence a family provision claim either before or after a grant of probate. However, the court will not make a final order to distribute the estate’s assets until probate has been granted.

This type of claim focuses on the fairness of the will’s contents rather than the validity of the document itself.

Challenging the Legal Validity of the Will

Challenging a will is a different legal process that disputes the validity of the will as a legal document. This action is taken when there are reasons to believe the will itself is illegitimate. It is preferable to raise a challenge before a grant of probate is made.

The primary grounds for challenging the validity of a will in NSW include:

• Lack of testamentary capacity: The will-maker did not have the required mental capacity to understand the nature and effect of making a will.
• Undue influence or coercion: The will-maker was forced, manipulated, or coerced into creating or changing their will against their true intentions.
• Fraud or forgery: The will was created through deceptive means, such as a forged signature or by tricking the deceased into signing it.

While it is possible to challenge a will after probate has been granted, the process becomes significantly more difficult. The person bringing the challenge will have a greater burden of proof and must convince the court to revoke the grant of probate.

Grounds for Taking Legal Action After Probate

Grounds for a Family Provision Claim in NSW

To make a family provision claim in New South Wales, you must first be considered an “eligible person” under the Succession Act 2006 (NSW). This requirement ensures that only individuals with a recognised relationship to the deceased can apply for provision from the estate.

Eligible persons include:

• A wife or husband of the deceased.
• A de facto spouse of the deceased.
• A child of the deceased person.
• A former wife or husband of the deceased.
• A person who was financially dependent on the deceased.
• A grandchild who was a member of the deceased’s household.
• A person who was living in a close personal relationship with the deceased.

Once eligibility is established, the court will consider several factors when deciding whether to make an order for provision. Although your financial need is the most critical consideration, the court looks more broadly to achieve a fair outcome.

Key factors the court takes into account include:

• The nature and duration of your relationship with the deceased.
• Any obligations or responsibilities the deceased had to you or other beneficiaries.
• Your financial resources, earning capacity and needs, both present and future.
• The financial circumstances of other beneficiaries and applicants.
• Any physical, intellectual or mental disability affecting you or another beneficiary.
• Your age at the time the application is heard.
• Any financial or non-financial contributions you made to the deceased’s estate or welfare.
• The character and conduct of the parties involved.
• The size and nature of the estate, together with its liabilities.

Grounds for Challenging a Will’s Validity

Challenging a will involves arguing that the document itself is legally invalid. Even after probate has been granted, a will can still be contested in NSW on several specific grounds.

Common grounds for challenging a will’s validity include:

• Lack of testamentary capacity: This argument is a primary reason for how to challenge an invalid will for lack of testamentary capacity, as it is based on the premise that the will-maker did not have the required mental capacity. The legal test requires the person to understand the nature of making a will, the extent of their property and any moral obligations to potential beneficiaries, without being affected by a mental disorder that would influence their decisions.
• Undue influence or coercion: A will can be invalidated if it is proven that the will-maker was coerced or manipulated into creating the document against their true intentions. The person making the allegation must show that the will-maker’s free will was overborne through pressure, threats or intimidation.
• Fraud or forgery: A challenge may succeed if there is evidence of fraud, such as the will-maker being tricked into signing the document. Forgery occurs when the will or the signature is created by someone other than the deceased, thereby invalidating the document entirely.
• The testator did not know and approve the will’s contents: Although a person who signs a will is presumed to know and approve its contents, this presumption can be rebutted. Evidence may establish that the will-maker was unaware of what the document contained at the time of signing.

The Legal Proceeding for Contesting a Will in NSW After Probate

Understanding the Critical Time Limits

When contesting a will in New South Wales, understanding the 12-month time limit to contest a will is crucial, as the rules differ depending on the type of claim you are making. For a family provision claim—where you argue for adequate provision—the proceeding must be commenced within 12 months of the deceased person’s date of death.

While the court may grant an extension in limited circumstances, it is always advisable to act promptly. In contrast, if you are challenging the validity of the will itself on grounds such as fraud, undue influence, or lack of testamentary capacity, there is no strict time limit.

However, it is significantly easier to bring a challenge before a grant of probate is issued. If you challenge the will after probate has been granted, you will bear a greater onus to convince the court to revoke the grant and must explain your delay in taking action.

Key Steps to Commence a Proceeding

The first step in commencing a proceeding is to assess whether you are an “eligible person” under the Succession Act 2006 (NSW). This is a critical requirement for making a family provision claim.

Once your eligibility is confirmed, the next step involves gathering substantial evidence to support your case. The evidence required will depend on the nature of your claim, but it generally includes:

• Documents that establish your relationship with the deceased person
• Information demonstrating your financial needs and resources
• Proof of any financial or non-financial contributions you made to the deceased’s welfare or estate
• Any other evidence that supports your argument for inadequate provision or the invalidity of the will

After gathering the necessary evidence, the formal legal proceeding is commenced by filing an application with the Supreme Court of NSW. For a family provision claim, this involves filing a summons along with your affidavit of evidence. This application names the executor or administrator of the estate as the defendant and officially begins the court process.

The Role of Mediation & Court Proceedings

It is a common misconception that every will dispute results in a lengthy and expensive court battle. In reality, most cases in New South Wales are resolved through negotiation or mediation without ever proceeding to a final court hearing.

In fact, mediation is a compulsory step in the process for family provision claims. The court will typically set a timetable that leads to a mediation, where all parties meet with a neutral third party to attempt to reach a settlement.

This process is designed to:

• Save time
• Reduce legal costs for everyone involved

The vast majority of will disputes are successfully settled at this stage, providing a resolution that avoids the uncertainty and stress of a formal court hearing.

Can You Contest a Will After the Estate Has Been Distributed

It is possible to contest a will in New South Wales even after the estate has been distributed, but this situation makes the legal proceeding significantly more complex. Your ability to make a claim largely depends on whether you acted within the required time limits and properly notified the executor of your intentions.

If you commenced your claim within the 12-month time limit from the date of death and informed the executor of your anticipated proceeding, you can ask the court to intervene. In these circumstances, a judge may order the beneficiaries to return the assets they received from the estate.

However, the recovery of these assets is not guaranteed. For example:

• If a beneficiary has already spent the funds and is now insolvent, it may be impossible to get the money back.
• The court may consider whether the assets can be traced or recovered, but practical difficulties often arise.

In cases where an executor distributes the estate despite being aware of a potential claim, they may be held personally liable. This means the executor could be required to pay any amount awarded to you by the court from their own funds.

Conversely, if your claim is lodged outside the prescribed time limit and the assets have already been distributed, it is highly unlikely that your claim will be successful.

Why You Should Hire a Wills & Estates Solicitor

Disputing a will in New South Wales involves complex legal issues that can be challenging to navigate without professional guidance. The laws governing will disputes are highly technical, and strict time limits apply once probate has been granted. For this reason, seeking legal advice at an early stage is essential to determine whether you are eligible to make a claim and to understand which legal principles apply to your circumstances.

Engaging an experienced wills and estates solicitor can significantly strengthen your position. A qualified practitioner can assess the merits of your claim, clearly explain your legal rights, and guide you through the court process with confidence and precision. Their specialised knowledge of NSW probate law allows them to develop tailored legal strategies, ensure compliance with procedural requirements and deadlines, and ultimately improve your prospects of achieving a successful outcome.

Conclusion

Contesting a will in New South Wales after probate has been granted is possible, whether through a family provision claim for inadequate provision or by challenging the will’s validity on grounds like undue influence or fraud. Understanding the strict time limits, eligibility requirements, and legal grounds is essential, as is recognising that the proceeding can be complex even when mediation is a compulsory step.

If you believe you have been unfairly treated in a will or have concerns about its legitimacy, seeking timely legal advice is a crucial step. For specialised guidance on your claim, contact the experienced wills and estates lawyers at PBL Law Group to ensure your rights are protected throughout the proceeding.

Frequently Asked Questions