How to Contest a Will: A Step-by-Step Guide

Introduction

Contesting a will or challenging a deceased estate is a significant legal step that can impact both your rights and the distribution of assets. Understanding the process, strict time limits, and the importance of seeking advice from a wills and estates lawyer is essential before taking action.

This guide is designed to help those considering a will contest or involved in contested wills matters to make informed decisions and protect their interests throughout the estate process.

STEP 1 Pre-Court Actions & Legal Consultation

The Importance of Seeking Specialist Legal Advice

Engaging an experienced estate litigation solicitor is the most critical first step if you are considering a will contest. A specialist can provide a detailed evaluation of your situation, assess the merits of your claim, and offer a realistic understanding of your chances of success.

This initial consultation is essential for understanding your legal rights and the potential costs involved in a deceased estate dispute. An expert in wills and estate law will also ensure you are aware of the strict time limits that apply. For instance, a family provision claim must typically be filed within 12 months of the person’s death.

Seeking prompt legal advice is vital to:

• Protect your position in the dispute
• Determine the best strategy for your case

Notifying the Executor of Your Intended Claim

It is essential to provide early notification to the executor or administrator of the deceased estate about your intention to contest the will. Your solicitor should send a formal notice, ideally within six months of the testator’s death.

This action is a crucial measure to help:

• Prevent the premature distribution of the estate’s assets to the beneficiaries named in the will
• Demonstrate your serious intent to pursue the matter

In addition to protecting the assets, this formal notification creates an opportunity to begin discussions for a potential negotiation or settlement. This can resolve the dispute more efficiently than proceeding directly to court.

Attempting Negotiation & Mediation to Avoid Court

Court proceedings for contested wills should be considered a last resort, as they are often expensive, lengthy, and emotionally draining for all parties involved.

A significant majority of will contest claims are resolved before reaching a final court hearing. Many disputes are settled through informal negotiations between the parties’ lawyers.

Mediation in NSW will disputes is another highly effective method for resolving these matters without going to court.This process involves a neutral third-party mediator who helps facilitate a discussion to find a mutually acceptable solution.

The Supreme Court of NSW requires parties to attend mediation before a final hearing, and most cases are successfully settled at this stage, saving considerable time, money, and stress.

STEP 2 Preparing & Filing Your Will Contest Claim

Filing a Probate Caveat to Prevent Asset Distribution

Filing a probate caveat with the Supreme Court of NSW is a critical protective measure when you intend to contest a will. This legal notice effectively prevents the court from issuing a grant of probate, which is the formal validation of the will. By stopping the grant, the caveat ensures the executor cannot legally distribute the assets of the deceased estate while the will’s validity is under challenge.

A caveat remains in effect for six months from the date it is filed and can be extended if necessary. Anyone with a legitimate interest in the estate, such as a beneficiary under a previous will or an eligible family member, can file one. However, if the person applying for probate believes you lack a genuine interest, they can apply to the court to have your caveat removed.

Gathering Essential Evidence for Your Wills & Estate Contest

To successfully contest a will, you must gather compelling evidence to support your claim. The specific evidence required will depend on the legal grounds of your challenge.

Your solicitor will guide you in preparing a detailed affidavit, which is a sworn statement outlining your case, supported by relevant documentation.

The types of evidence commonly used in a contested wills matter include:

• Medical Evidence: For claims involving a lack of testamentary capacity, medical records are vital. This can include psychiatric assessments, reports from specialists, and GP records that shed light on the testator’s mental state when the will was created.
• Financial Records and Witness Statements: If you are alleging undue influence, financial documents, correspondence, and testimonies from witnesses can help demonstrate that the testator was pressured or manipulated.
• Expert Testimony: In cases of suspected fraud or forgery, evidence from handwriting analysts or other forensic specialists can be crucial to prove that the will is not authentic.
• Proof of Financial Need: For a family provision claim, you will need to provide evidence of your financial circumstances, your relationship with the deceased, and any contributions you made to their welfare to show you were not adequately provided for.

Filing the Correct Documents with the Supreme Court

Once you have gathered your evidence, the next step is to commence formal court proceedings by filing the correct documents with the Supreme Court of NSW. This officially begins your will contest. Failing to file the proper documentation can cause delays or jeopardise your claim.

The mandatory documents required to start a will contest or family provision claim typically include:

• A Summons: This is the formal court document that initiates the legal proceedings and seeks specific orders from the court.
• A Supporting Affidavit: This is your sworn statement containing all the evidence that supports your claim, including details about your financial position, health, and relationship with the deceased.
• A Statement of Claim: This document outlines the specific grounds for your challenge and the outcome you are seeking from the court.
• A Solicitor’s Affidavit on Legal Costs: Your solicitor must provide an affidavit that gives an estimate of the potential legal costs involved in running your case.

STEP 3 The Court Process After Commencing Proceedings

Serving Notice on All Affected Parties

After you commence formal court proceedings for a will contest, you must serve a notice of these proceedings on all parties who would be adversely affected by your claim. This legal requirement ensures that everyone with an interest in the deceased estate—such as other beneficiaries named in the will who may now require legal advice on defending a will—is formally notified.

The Supreme Court Rules 1970 (NSW) make it clear that personal service of the notice is mandatory. When serving that notice, you must include: 

• a copy of your statement of claim 
• any relevant wills

All beneficiaries whose inheritance could be impacted are then added to the case as co-defendants.

The Role of Directions Hearings & Further Evidence

Once proceedings are underway, the case is managed by a judge through a series of directions hearings. These hearings, often held in the Supreme Court’s Probate and Family Provision List, set a timetable and prepare the matter for a final resolution.

During each directions hearing, the judge will outline the next procedural steps. Typically, the court will require parties to: 

• file further evidence—for example, additional affidavits from witnesses by specified deadlines
• resolve procedural issues that must be dealt with before any final hearing

Compulsory Mediation as a Step in Court Proceedings

Before a contested will matter proceeds to a final hearing, the Supreme Court of NSW requires the parties to attend compulsory mediation. This structured negotiation, facilitated by a neutral third party, aims to resolve the dispute without the time, expense, and stress of a trial.

Mediation enjoys a very high success rate. In most estate disputes:

• the parties reach agreement at mediation, leading to formalised terms
• the court proceedings end at that point, avoiding the need for trial

Proceeding to a Final Hearing or Trial

If the parties cannot reach a settlement at mediation, the will contest will proceed to a final hearing or trial—a step reached by only a very small percentage of cases.

At the hearing, the judge will: 

• hear evidence from both sides, including cross-examination of witnesses on their affidavits
• consider all legal arguments, then deliver a written judgment that determines the outcome of the estate dispute

Key Considerations for Your Contested Wills Claim

Strict Time Limits for a Family Maintenance & Will Contest

When considering a family provision claim, you must adhere to a strict time limit. Under the Succession Act 2006 (NSW), any application must be filed with the Supreme Court within 12 months of the date of the testator’s death. This deadline is critical and is enforced rigorously by the courts.

The 12-month period begins from the date of death, not from the date you become aware of the will’s contents or when a grant of probate is issued. Missing this deadline typically results in permanently losing your legal right to contest the will and make a claim on the deceased estate.

While it is possible to apply for an extension, obtaining one is exceptionally difficult. You must demonstrate “sufficient cause” for the delay to the court, and such extensions are rarely granted.

Understanding the Potential Legal Costs

Contesting a will can be an expensive process, so it is important to understand the potential legal costs for contesting a will before commencing proceedings.

Legal costs in a contested wills matter are not automatically paid from the deceased estate. The court holds the discretion to decide how legal costs will be handled.

While costs are often paid from the estate, this is not guaranteed. If your claim is unsuccessful, there is a significant risk that you may be ordered to pay not only your own legal fees but also the legal costs of the other party.

These expenses can include:

• Court filing fees
• Solicitors’ professional fees
• The cost of expert witnesses

Depending on the complexity of the case, these costs can amount to tens of thousands of dollars.

Conclusion

Commencing a will contest follows a structured path, from essential pre-court actions and filing your claim to the formal court process. Success hinges on gathering strong evidence, adhering to strict time limits, and understanding the significant legal costs involved in a deceased estate dispute.

If you are considering contesting a will or need to respond to a claim, contact the experienced wills and estates lawyers at PBL Law Group today. Our team provides the specialised legal advice necessary to protect your interests and guide you through every step of the contested wills process.

Frequently Asked Questions