Introduction

When a person in New South Wales is unfairly left out of a will or believes the provision they received is inadequate, they may be able to contest the will. This legal process is known as a family provision claim, an application made to the court under the Succession Act 2006 (NSW) for a greater share of the deceased person’s estate. It is important to understand that a family provision claim does not challenge the validity of the will itself but rather argues for fair and adequate provision.

The success of a family provision claim often depends on the quality and strength of the evidence presented. For any applicant, providing credible evidence, whether through written affidavits or by giving testimony in court, is crucial but can be a daunting prospect. This guide offers essential information on the types of evidence needed to contest a will and provides practical guidance on how to present your case effectively in these complex estate disputes.

Contesting vs. Challenging a Will: Are You Giving the Right Kind of Evidence?

Before preparing your testimony, it’s vital to understand the difference between contesting a will and challenging one. While the terms are often used interchangeably, they represent two distinct legal actions in New South Wales. This guide focuses on contesting a will, which is legally known as making a Family Provision Claim.

Basis of the Claim	Contesting a Will (Family Provision Claim)	Challenging a Will
The Argument	“The will is valid, but the share I received is insufficient for my proper maintenance and support.”	“The entire will is invalid due to issues like undue influence or lack of capacity, and should be set aside.”
The Goal	To have the court increase your provision from the estate, giving you a larger share than what was originally written in the will.	To have the will declared void, which could mean an earlier will takes effect or the estate is divided by intestacy rules.
The Evidence You Give	Evidence of your financial needs, your relationship with the deceased, contributions you made, and the financial status of other beneficiaries.	Evidence that the deceased was forced or coerced (undue influence), did not have the mental soundness to make a will (lack of capacity), or that the will is a forgery.

In simple terms, you contest a will to ask for a larger share of a valid will. You challenge a will to argue that the entire document is illegitimate.

This guide focuses on giving evidence for a Family Provision Claim (contesting a will). If you believe the will is fundamentally invalid, you would need to explore the separate process of challenging its validity.

Understanding Your Role in a Contested Will Case

What Is a Family Provision Claim in an Estate Dispute

In New South Wales, to contest a will generally means to make a family provision claim. This type of legal action does not challenge the validity of the will itself; rather, it is an application made to the court by an eligible person who believes the deceased person did not make adequate provision for them in their will. The goal is to seek a greater share of the deceased estate for proper maintenance, education, or advancement in life.

Under the Succession Act 2006 (NSW), only an ‘eligible person’ can make a family provision claim. The categories of eligible persons include:

Eligibility Category	Description
Primary Eligible Persons	Includes the spouse or de facto partner of the deceased at the time of death, a child of the deceased, or a former spouse of the deceased.
Other Potential Applicants	Includes individuals who must demonstrate to the court that factors warrant their application, such as a grandchild who was wholly or partly dependent on the deceased, or someone who was living in a close personal relationship with the deceased.

An application to make a claim must typically be filed within 12 months from the date of death, though the court may grant an extension if sufficient cause for the delay is shown.

The Court Hearing Process & Your Testimony

While many estate disputes are resolved through negotiation or mediation, some proceed to a formal court hearing. If your family provision claim goes to court, you will likely be required to give evidence. The hearing is an opportunity for each party to present their case, which primarily relies on written affidavits, but may also involve oral testimony.

The court process typically follows this sequence:

1. Your affidavit is ‘read’ into evidence
2. The judge reviews this document
3. The opposing party’s lawyer can object to parts of it

Following this initial stage, you may be asked questions by your own lawyer to clarify or expand on your written statement in a process called examination-in-chief.

Afterward, you will face cross-examination, where the opposing party’s barrister will question you. The aim of cross-examination is often to:

• Test the credibility of your evidence
• Weaken your statements
• Obtain admissions that support the opposing case

This process is repeated for all witnesses, including the executor, other beneficiaries, and anyone else providing evidence for either side.

Types of Evidence Used to Contest a Will

Your Written Affidavit & Supporting Documents

When you make a family provision claim, your primary piece of written evidence is a formal affidavit. This first-person narrative recounts events relevant to the claim and forms the foundation of your case.

Within the affidavit, you can attach supporting documents as exhibits. These exhibits:

• substantiate your statements
• serve as formal proof of the facts you describe

Once prepared, affidavits are filed with the court and served on the other parties involved in the estate dispute. The court then relies on the admissible evidence within these affidavits to make its factual findings.

Testimonial, Expert & Other Forms of Evidence

Beyond your written affidavit, several other forms of evidence can be vital when you contest a will. Indeed, the success of a family provision claim often depends on the quality and extent of evidence presented to the court. An experienced solicitor can help identify and gather the most compelling materials for your case.

A variety of evidence types may be used to support your claim, including:

Evidence Type	Description
Testimonial Evidence	Oral evidence given in the witness box, which may involve clarifying an affidavit or undergoing cross-examination.
Expert Evidence	Opinions from qualified experts, such as medical specialists or financial valuers, which are considered by the court.
Medical Evidence	Records from doctors who treated the deceased, including consultation notes and test results, to establish a medical history.
Digital and Electronic Evidence	Recordings, emails, or text messages, such as a video of the testator discussing their intentions, subject to admissibility rules.
Physical Evidence	Material objects such as previous wills, letters from the deceased, or file notes from the solicitor who drafted the will.
Extrinsic Evidence	Information not contained within the will itself, used by the court to clarify ambiguous wording or interpret the testator’s intentions.

How to Give Effective Evidence in Your Estate Dispute

Practical Tips for Presenting Credible Testimony

When you are a witness in a contested will case, the court assesses your credibility. Presenting your evidence clearly and honestly is crucial for the success of a family provision claim.

To help demonstrate your credibility to the court, there are several practical steps you can take:

Tip	Explanation
Listen Carefully	Pay close attention to each question and ensure you fully understand it before answering to prevent misunderstandings.
Ask for Clarification	If a question is unclear, ask the barrister to rephrase it rather than answering a question you do not understand.
Be Truthful and Precise	If you do not know an answer or cannot recall a detail, say so. Guessing can damage your credibility.
Speak Clearly	Answer all questions in an audible voice so the judge and all parties can hear and understand your testimony.
Maintain Composure and Respect	Treat the judge, barristers, and other parties with respect, addressing the judge as ‘Your Honour’.
Review Your Evidence	Thoroughly review your affidavit and supporting documents before the hearing to refresh your memory and ensure consistency.
Locate Supporting Materials	Find materials that can corroborate your memory, such as letters, emails, diary entries, or receipts.

Common Pitfalls & How to Avoid Them

Giving evidence that is implausible or dishonest can be detrimental to your case. The court will weigh your testimony against other evidence, and a lack of credibility can lead to your claim being dismissed.

The case of Estate of the Late James Sundell [2019] NSWSC 1108 provides a clear example of how poor evidence can undermine an otherwise valid claim. In this estate dispute:

• The plaintiff’s claim was dismissed largely because the court found his evidence to be unsatisfactory
• The court described his story as “implausible” and “entirely fabricated”
• The dishonesty he attributed to the deceased testator was inconsistent with the deceased person’s reputation as an honest man

In contrast, the court found the evidence from other witnesses to be highly credible. For instance, the deceased’s daughter was described as a “truthful and thoughtful witness,” particularly after she took steps to correct a minor mistake in her testimony that was slightly adverse to her own interests. This act was seen as compelling evidence of her honesty.

The case illustrates that fabricating stories or providing testimony that contradicts other reliable evidence are major pitfalls that can cause a court to dismiss your claim.

How a Solicitor Helps Manage Evidence in a Contested Will Case

Identifying & Gathering Crucial Evidence for Your Claim

An experienced solicitor plays a vital role in a family provision claim by identifying and obtaining the evidence needed to advance your case. The success of your claim often depends on the quality and extent of the evidence presented, as even the strongest legal argument can fail without sufficient proof.

Identifying relevant evidence at an early stage offers significant advantages. Not only does it strengthen your position in court, but it can also facilitate negotiations and mediation, potentially leading to an earlier resolution of your case.

A solicitor can explore various avenues to obtain crucial documents and information, including:

Method of Obtaining Evidence	Description
Voluntary Production	Supporters of your claim, such as friends or family, may willingly provide relevant documents like letters, emails, or file notes.
Formal Requests	For confidential records, legal requirements must be met. For example, under the Succession Act 2006 (NSW), an executor must provide a copy of the will to entitled persons.
Court Orders (Subpoena)	If a party refuses to provide documents, a solicitor can apply for a subpoena, which compels them to produce relevant evidence.

Preparing Affidavits & Witnesses for Court

A solicitor’s assistance is crucial in preparing written evidence and ensuring witnesses are ready for court proceedings. Your primary written evidence is presented in an affidavit, a formal document that requires careful preparation.

A skilled solicitor helps prepare this document to ensure all information is:

• Relevant to your case
• Admissible in court
• Structured for maximum impact

This preparation often involves the lawyer conferencing with each witness separately to ask questions and draft a statement that accurately reflects their memory of events.

Preparing witnesses for giving oral testimony is another key responsibility. Since a case can be significantly weakened by unexpected or poorly delivered testimony, a solicitor will:

• Conduct thorough conferences with each witness to critically examine their evidence
• Prepare the witness for the types of questions they can expect from their own barrister during examination-in-chief
• Help the witness understand the process of cross-examination, where the opposing party’s barrister will test their credibility and attempt to weaken their statements

Conclusion

Successfully contesting a will in New South Wales through a family provision claim depends on presenting strong, credible evidence to the court. This involves understanding the court process, preparing a detailed affidavit, and delivering effective testimony to demonstrate that the provision made by the deceased person was inadequate.

Navigating the complexities of a deceased estate dispute requires careful legal guidance. For trusted legal advice on your family provision claim, contact the experienced team at PBL Law Group to help you understand your rights and effectively present your case.

Frequently Asked Questions