Introduction

The death of a loved one is a challenging time, and discovering that you have been unfairly treated in their will can add significant emotional and financial stress. If you believe a will is unfair, there are legal avenues to pursue in New South Wales (NSW) to address the issue, which are governed by the Succession Act 2006 (NSW).

This guide outlines the two distinct legal pathways available when dealing with an unfair will. It provides essential information on how to either challenge the will’s fundamental validity or contest its provisions by making a Family Provision Claim to seek adequate provision from the deceased person’s estate.

Understanding What Makes A Will Unfair In NSW

When a will is described as “unfair” in New South Wales, it can refer to two distinct legal issues. Grasping this difference is crucial because it determines the legal path you might take to address the situation.

Generally, an “unfair” will falls into one of two categories:

• Invalid document: this occurs when the will itself is legally defective—for example, if it was created under fraudulent circumstances or is a forgery.
• Inadequate provision: more common than invalidity, this arises when a legally valid will fails to make adequate provision for the proper maintenance, education or advancement in life of an eligible person, such as a spouse or child.

These different meanings of an “unfair” will lead to two separate legal avenues for seeking a remedy.

Your Two Legal Pathways For An Unfair Will

Challenging The Will’s Fundamental Validity

One legal option is to challenge the will’s fundamental validity. This pathway involves arguing that the document is legally flawed and should be disregarded entirely by the court. In other words, it’s not about whether the distribution is fair but whether the will qualifies as a legitimate legal document in the first place.

Common grounds for such a challenge include:

• Undue influence, where the testator was pressured or coerced.
• Forgery of the will document.
• Fraudulent creation of the will.
• Lack of mental capacity, meaning the testator did not understand what they were signing.
• Improper execution, if the will was not signed and witnessed correctly under New South Wales law.

Contesting The Will’s Provisions For Fairer Distribution

The second pathway is to contest the will’s provisions by making a Family Provision Claim. This approach accepts that the will is valid but argues that its distribution is unfair because it fails to provide adequately for an eligible person’s proper maintenance, education, and advancement in life.

Under the Succession Act 2006 (NSW), certain individuals—such as a spouse, child, or other dependent—can apply to the Supreme Court of NSW to:

• Obtain a share of the deceased estate.
• Secure a larger share than what the will originally provides.

Ultimately, a Family Provision Claim asks the court to adjust the terms of the will to ensure a fair distribution to those the deceased had a responsibility to support.

Challenging vs. Contesting: Understanding Your Two Legal Pathways

The first and most critical step in dealing with an “unfair” will is to understand which legal path applies to your situation. The terms challenging and contesting refer to two entirely different legal actions with different goals, grounds, and time limits. Choosing the correct pathway is essential for your success.

Basis of the Claim	Challenging a Will’s Validity	Contesting a Will’s Provisions (Family Provision Claim)
The Core Argument	“This will is legally invalid and should be thrown out.”	“This will is legally valid, but its distribution is unfair to me.”
The Goal	To have the will declared void, causing an earlier will or the rules of intestacy to take effect.	To have a court adjust the will’s terms to provide you with a larger share from the estate.
Common Grounds	Lack of mental capacity, undue influence, fraud, forgery, or improper signing and witnessing.	Being an “eligible person” (like a spouse, child, or dependent) who has not received adequate provision for your proper maintenance and needs.
Time Limit	No strict statutory limit, but you must act urgently before the estate is distributed.	A strict 12-month deadline from the date of the deceased’s death.

The following sections will explore each of these two pathways in detail, helping you determine which one aligns with your circumstances.

Pathway 1 Challenging The Legal Validity Of The Will

Common Grounds For A Validity Challenge

In New South Wales, a will can be challenged if there are legitimate reasons to believe the document does not represent the true testamentary intentions of the deceased. An experienced legal professional can assist in gathering crucial evidence—such as medical records or witness statements—to support such a claim.

Common reasons for challenging a will’s validity include:

Ground for Challenge	Description
Lack of Testamentary Capacity	The testator did not possess the required mental capacity to understand the document, their assets, or the claims of potential beneficiaries, often due to conditions like dementia.
Undue Influence	The testator was pressured, coerced, or subjected to excessive influence, leading to a will that did not reflect their own wishes.
Fraud or Forgery	The will is not authentic because it was forged, or the testator was deceived into signing a document they did not realise was a will.
Improper Execution	The will fails to meet the strict legal formalities required by Part 2.1 of the Succession Act 2006 (NSW), such as correct signing and witnessing.

Who Can Challenge A Will’s Validity

Only individuals with a “legitimate interest” in the deceased’s estate may challenge a will in NSW. In other words, their own position must be affected by the outcome of the challenge.

Those who may have standing include:

Category of Person	Reason for Having “Legitimate Interest”
Excluded Beneficiaries	Relatives who were named as beneficiaries in an earlier will but were excluded from a later one.
Concerned Parties	Anyone who suspects the will was created under suspicious circumstances, such as through fraud or undue influence.
Family Members	Individuals who believe the deceased made the will after a dementia diagnosis or during a serious illness that affected their capacity.
Intestate Heirs	A person entitled to a share of the estate under the rules of intestacy (if no valid will existed) but was left out of the current will.

The Process For Challenging A Will’s Validity

Why You Must Act Quickly To Challenge A Will

While there is no strict statutory time limit in New South Wales for challenging the validity of a will, it is crucial to act without delay. If you wait too long, the executor may obtain a grant of probate and begin distributing the assets of the deceased estate to the beneficiaries.

Once the assets have been distributed, recovering them can be extremely difficult or even impossible. Therefore, any delay risks making your challenge futile, regardless of how strong your legal grounds are.

Seeking prompt legal advice is essential to protect your position and ensure the estate is not dealt with before your concerns are addressed.

Key Steps Lodging A Caveat & Court Proceedings

The process for challenging a will’s validity typically begins with seeking legal advice from a solicitor specialising in wills and estate law. If there appear to be legitimate grounds for a challenge, the next step is often to lodge a caveat with the Supreme Court of NSW.

A caveat is a legal notice that temporarily prevents a grant of probate from being issued for the will in question. This provides time for the dispute to be investigated and potentially resolved.

The key steps in the process generally include:

Step	Description
Lodging a Caveat	A lawyer files a caveat with the Supreme Court of NSW, which remains in force for six months, formally signalling the challenge and temporarily preventing probate.
Negotiation and Mediation	Many disputes are resolved through negotiation or a formal mediation process, which is a less costly alternative to a court hearing.
Commencing Court Proceedings	If unresolved, a statement of claim is filed, and the matter proceeds to be heard and decided by a judge in the Supreme Court of NSW.

Who Is Eligible To Make A Family Provision Claim

In New South Wales, you can contest a will by making a Family Provision Claim if you are an ‘eligible person’ under the Succession Act 2006 (NSW). This legal action does not challenge the will’s validity but argues that it fails to make adequate provision for your proper maintenance, education, or advancement in life.

To make a family provision claim, you must fall into one of the specific categories defined by the legislation. These eligible persons include:

Eligible Person	Description
A spouse or de facto partner	The husband, wife, or de facto partner (including a same-sex partner) of the deceased at the time of their death.
A child of the deceased	This category includes both biological and adopted children.
A former spouse	An ex-husband or ex-wife of the deceased person.
A person dependent on the deceased	Individuals who were wholly or partly dependent on the deceased and are either a grandchild or were a member of the deceased’s household.
A person in a close personal relationship	Someone who was living in a close personal relationship with the deceased at the time of their death.

It is important to note that while a spouse, de facto partner, or child can make an application as of right, other eligible persons must demonstrate to the court that there are “factors warranting” their application. This means they need to show that the deceased had a moral obligation to provide for them.

Key Factors The Court Considers In Your Claim

When the Supreme Court of NSW assesses a Family Provision Claim, it does not simply change a will because it seems unfair. Instead, the court carefully considers a range of factors to determine whether adequate provision has been made for the applicant.

The court will evaluate the following key matters when deciding whether to make a family provision order:

Factor	What the Court Evaluates
The applicant’s financial situation	The applicant’s current financial resources and their future financial needs, as well as the circumstances of any person they live with.
The relationship with the deceased	The nature and length of the relationship between the applicant and the deceased person.
The size and nature of the estate	The total value of the deceased estate’s assets that are available for distribution.
The needs of other beneficiaries	The court balances the applicant’s needs against the financial needs and claims of other beneficiaries named in the will.
Contributions made by the applicant	Any financial and non-financial contributions the applicant made to the deceased’s property or welfare.
The deceased’s intentions	Any evidence of the testator’s testamentary intentions, although this is not the deciding factor.
The applicant’s age and health	The applicant’s age and any physical, intellectual, or mental disabilities relevant to assessing their needs.

The Process For Making A Family Provision Claim

The Strict 12-Month Time Limit You Must Meet

In New South Wales, you must make a Family Provision Claim within a strict time limit. An application must be filed with the court within 12 months of the deceased person’s date of death, as stipulated by the Succession Act 2006 (NSW).

This deadline is critical, and failing to act promptly can result in you being barred from making a claim altogether. While the court may grant an extension in exceptional circumstances, it is essential to seek legal advice as soon as possible to protect your rights and ensure you do not miss this important window.

Resolving Your Dispute Through Mediation & Court

Most family provision disputes in NSW are resolved without proceeding to a final court hearing. The legal process encourages resolution through negotiation or mediation, which is a less formal and more cost-effective way to reach a settlement.

The typical steps involved in resolving a claim include:

Step	Description
Seeking Legal Advice	The first step is to consult a lawyer to assess your eligibility and the strength of your claim.
Negotiation and Mediation	The lawyer will likely attempt to negotiate a settlement with the executor, often proceeding to mediation to reach a mutually agreeable outcome.
Commencing Court Proceedings	If no agreement is reached, a summons is filed in the Supreme Court of NSW, which will then hear the evidence and make a decision.

Conclusion

Dealing with an unfair will in New South Wales requires understanding two distinct legal pathways: challenging the will’s fundamental validity or contesting its provisions through a Family Provision Claim. This guide has detailed the specific grounds and processes for each option, empowering you to identify the appropriate course of action based on whether the will is legally flawed or simply fails to make adequate provision for you.

If you have been unfairly treated in a will, it is vital to act promptly to protect your rights, as strict time limits apply for challenging a will’s validity or filing a Family Provision Claim. For trusted expertise and clear guidance on your legal options, contact our specialised Wills & Estates team at PBL Law Group today to help you navigate the complexities and secure a fair outcome.

Frequently Asked Questions