NSW Will Disputes: The Supreme Court’s Role & Authority

Introduction

When a person’s final will is disputed in NSW, the Supreme Court of New South Wales serves as the primary authority for resolving these complex matters. Its role is essential for validating the deceased’s last wishes while also providing a formal process for those who believe the will is invalid or fails to make adequate provision.

The court’s power and authority are multifaceted, extending from granting probate to overseeing contentious claims regarding an estate. This guide explores the court’s decisive role in these proceedings and clarifies the significant duty placed upon an executor to uphold the will and manage the estate through any legal challenges.

The Supreme Court’s Core Authority Over a Will in NSW

Validating a Will Through Probate

The involvement of the NSW Supreme Court in the administration of a will begins with the grant of probate. This grant serves as a formal validation, confirming that the will is the deceased’s final testamentary testament.

The court’s authority is established through this process, which is founded on the understanding that:

• The will is valid
• The document truly represents the last wishes of the deceased

Obtaining a grant of probate is a critical step before the executor can begin to manage and distribute the estate’s assets. For this reason, any challenge to the validity of a will should be made before probate is granted.

This initial validation by the court serves as the foundation for the entire estate administration process and any subsequent legal proceedings.

Managing Contested Proceedings & Family Provision Claims

The NSW Supreme Court manages will disputes through a specialised list known as the Probate and Family Provision List. This list is overseen by a List Judge with the assistance of the Registrar in Probate, ensuring that cases are handled efficiently and with the appropriate expertise.

The court’s case management procedures are specifically designed for the just, quick, and cheap disposal of these proceedings.

This specialised list primarily deals with two distinct types of disputes, exercising the court’s power to resolve conflicts concerning a will:

Type of Dispute	Description
Probate Proceedings	Contentious matters where the fundamental validity of a will is challenged.
Family Provision Applications	Claims from eligible persons who argue that the will has not made adequate provision for their proper maintenance, education, or advancement in life.

Challenging the Validity of a Will

Grounds for Invalidating a Will

Knowing when you can challenge a will in the NSW Supreme Court is crucial, and it requires legitimate reasons to believe it is not valid. The grant of probate relies on the will being the final testamentary intention of the deceased, but certain circumstances can lead to the decision to contest a will. Understanding the grounds for challenging the validity of a will is crucial, because if a challenge is successful, the court will set the will aside.

The primary grounds for invalidating a will include:

Ground for Invalidation	Description
Lack of Testamentary Capacity	The person making the will did not have the mental clarity to understand the document they were signing.
Undue Influence or Pressure	The will-maker was coerced or pressured by another person into making the will in a particular way.
Lack of Knowledge and Approval	The testator was not aware of or did not approve the contents of the will.
Improper Execution	The will was not signed and witnessed in accordance with the strict legal requirements.
Forgery or Fraud	The document is a forgery, or the will-maker was tricked into signing it.

If the court declares a will invalid, it will then consider if a previous valid will exists. In cases where no earlier valid will exists, the estate is distributed according to the laws of intestacy, essentially treating the situation as if no will was ever made.

Proving Lack of Testamentary Capacity or Undue Influence

Two of the most common grounds for challenging a will are a lack of testamentary capacity and the presence of undue influence.

To prove a lack of testamentary capacity, it must be shown that the will-maker did not have a clear mind when the document was created, perhaps due to dementia or another mental illness. The key is to demonstrate they could not understand:

• The nature of the will
• The extent of their assets
• Who they were choosing to include or exclude

Courts examine various forms of evidence to assess capacity, including:

• Medical records and testimony from doctors, nurses, or carers who attended to the deceased around the time the will was signed
• Statements from lay witnesses who saw the will-maker regularly
• Contemporaneous notes taken by the legal practitioner who prepared the will, which are often given significant weight

Undue influence, on the other hand, occurs when a person is forced or pressured into making a will that does not reflect their true wishes. In such cases, the court will investigate the circumstances thoroughly, looking at:

• How dependent the deceased was on the person alleged to have applied the pressure
• The will-maker’s mental state
• Whether the person who benefited from the will was involved in its drafting or arrangement

Issues with Forgery, Fraud or Improper Execution

A will can also be invalidated on technical or fraudulent grounds. If a will is proven to be a forgery, such as having a fake signature or mismatched handwriting, the court will set it aside. Similarly, if it can be shown that the will-maker was deceived or tricked into signing the document, it will be deemed fraudulent and invalid.

Furthermore, a will must adhere to strict formal requirements to be legally binding, as failure to do so is one of the common mistakes made when drafting a will. Under the Succession Act 2006 (NSW), a will is not considered properly executed unless it meets the following conditions:

• It is signed by the will-maker or by someone in their presence and at their direction
• The signature is made or acknowledged in the presence of two or more witnesses, who are present at the same time
• The witnesses then sign the will in the will-maker’s presence

If these steps are not followed correctly, the court may declare the will invalid, even if the deceased’s intentions were clear. This highlights the importance of ensuring every will is created with proper legal oversight.

Seeking Fairer Provision from an Estate

Who is an Eligible Person to Make a Claim

Under the Succession Act 2006 (NSW), only certain individuals are considered “eligible persons” to make a family provision claim. This is the first requirement that must be met before the Supreme Court of NSW will consider an application for further provision from an estate.

The categories of eligible persons include:

Eligible Person Category	Definition / Condition
A wife or husband	The spouse of the deceased at the time of their death.
A de facto partner	A person living with the deceased at the time of their death.
A child of the deceased	Can include adopted children and, in some circumstances, children born in a de facto relationship.
A former wife or husband	A previous spouse of the deceased.
A grandchild	A grandchild who was, at any point, wholly or partly dependent on the deceased.
A member of the deceased’s household	A household member who was, at any time, wholly or partly dependent on the deceased.
A person in a close personal relationship	Two adults living together where one or both provides domestic support and personal care to the other.

The Court’s Two-Stage Test for a Family Provision Order

When deciding a family provision claim, the court follows a structured, two-stage process, as established in the case of Singer v Berghouse. This ensures that decisions are based on a clear legal framework rather than subjective feelings of unfairness.

The two stages of this process are:

1. The jurisdictional question: The court must determine whether the applicant has been left without adequate provision for their proper maintenance, education, and advancement in life.
2. The discretionary stage: If the court is satisfied that the provision is inadequate, it then decides what provision, if any, ought to be made for the applicant from the deceased’s estate.

This methodical approach helps ensure consistency and fairness in the court’s decisions.

Key Factors the Court Considers

In determining whether to make a family provision order and in what amount, the court may consider a wide range of factors outlined in Section 60 of the Succession Act 2006 (NSW). This comprehensive list allows the court to make a broad evaluative judgment based on the unique circumstances of each case.

Key matters the court may weigh include:

Factor for Consideration	Description
Relationship with Deceased	The nature and duration of the relationship between the applicant and the deceased.
Obligations Owed	Any obligations or responsibilities the deceased owed to the applicant.
Estate Size and Nature	The size and nature of the deceased’s estate, including any notional estate.
Applicant’s Financials	The current and future financial resources and needs of the applicant.
Cohabitant’s Financials	The financial circumstances of any person the applicant is cohabiting with.
Applicant’s Personal Circumstances	The applicant’s age and any physical, intellectual, or mental disabilities.
Contributions to Estate	Any contributions, financial or otherwise, made by the applicant to the deceased’s estate or welfare.
Provision During Lifetime	Any provision the deceased made for the applicant during their lifetime.
Testamentary Intentions	Evidence of the deceased’s testamentary intentions.
Applicant’s Character and Conduct	The applicant’s character and conduct before and after the deceased’s death.

Through careful consideration of these factors, the court aims to balance respecting the deceased’s wishes with ensuring that eligible persons receive fair provision from the estate.

The Court’s Power to Rectify a Will

Correcting Drafting Errors & Simple Mistakes

The NSW Supreme Court has the authority to correct a will that contains simple mistakes or drafting errors. This power of rectification is used when an error prevents the will from accurately reflecting the true intentions of the person who made it.

Even when a will can be rectified by the court, it’s important to note that the costs associated with the legal proceedings to fix the mistake may still be sought from the firm responsible for the error.

When Rectification is Necessary

Rectification becomes necessary when a will is drafted with a lack of clarity, leading to significant questions about its meaning. This is a common issue with:

• Homemade wills
• “Will kits” where the wording used may be unclear

In these cases, the document often fails to capture the will-maker’s actual instructions.

For example, a poorly drafted will might create confusion over:

• The establishment of a trust
• The distribution of a large portion of the estate

Such ambiguities can prompt disputes and family provision claims. In these circumstances, the court’s intervention is required to interpret the will-maker’s intentions and correct the document to ensure their wishes can be carried out.

Upholding Executor Duty & Accountability

The Executor’s Duty in Court Proceedings

When a will is challenged, understanding the role of an executor in defending against family provision claims is essential, as their primary duty is to uphold its provisions and act as an adversary to the claimant. This responsibility involves either contesting the claim or compromising it, with the core purpose of protecting the interests of the beneficiaries named in the will.

To fulfil this duty effectively, the executor must put all relevant evidence before the court to contest the claim and support the validity of the will. However, as established in cases like Shannon v Shannon, this obligation does not extend to proving the challenger’s case for them. The executor’s role is fundamentally one of defending a will, not assisting those attempting to disturb it.

The Executor’s Power to Settle a Claim

An executor in NSW has the authority to compromise or settle a claim made against the estate. Under the Trustee Act 1925 (NSW), they can enter into a settlement if they believe it is appropriate to do so, often based on legal advice about the claim’s merits.

While the executor possesses the power to negotiate a settlement, the court retains the ultimate authority to review and approve it. In most cases, the court will give effect to a compromise reached by the parties. However, it may decline to approve a settlement if:

• The agreement appears to be for a purpose outside the scope of the Succession Act 2006 (NSW)
• The settlement is fundamentally flawed

Consequences of an Executor Breaching Their Trust

An executor who fails to perform their duties properly can face serious consequences. Breaches of trust can include:

• Mismanaging estate assets
• Acting in their own interest as a beneficiary rather than for the estate as a whole
• Causing unreasonable delays in the administration process

If beneficiaries believe an executor is breaching their trust, they can take action and ask the court to intervene. The court has the power to make several orders to protect the estate, including:

• Removing the executor from their position
• Appointing a new, independent person to administer the estate
• Forcing the executor to compensate the estate for any financial losses caused by their mismanagement

Conclusion

The NSW Supreme Court’s role in will disputes is extensive, covering the validation of a will, hearing challenges to its validity, and assessing claims for fairer provision. The court also has the power to rectify drafting errors and holds the executor accountable for their duty to properly administer the estate.

Understanding these complex legal challenges requires specialised knowledge and careful guidance. If you need assistance with a will dispute or have questions about an executor’s duty, contact the expert wills and estates law firm, PBL Law Group, for trusted legal support.

Frequently Asked Questions