What Happens When a Will is Disputed?
We have recently published a series of guides on Wills and Estates that have resonated strongly with our readers. Previously, we covered How to Contest a Will in NSW?, the correct steps on How to Change a Will in Australia: Codicil vs. New Will, and the complex rules regarding What Happens If You Die Without a Will.
Many of you have reached out with specific questions regarding these topics, but they often boil down to one major, overarching concern: “What actually happens when a Will is disputed?”
Whether you are a beneficiary worried about losing your inheritance, or an executor trying to defend the deceased’s wishes, a will dispute can be stressful and confusing. This guide explains the legal grounds for disputes and the step-by-step process involved in resolving them in New South Wales.
The Two Main Types of Will Disputes
Not all disputes are the same. In NSW, estate litigation generally falls into two distinct categories. Understanding which one applies to your situation is critical.
This type of claim argues that the Will itself is legally void and should not be recognized by the court. Common grounds include:
- Lack of Testamentary Capacity: The claim that the deceased suffered from conditions like dementia or severe illness and did not understand the nature of the document or the assets they owned.
- Undue Influence: This is more than just persuasion. It requires proving that the deceased was coerced or manipulated into making a will that did not reflect their true wishes (e.g., by a caregiver or aggressive relative).
- Fraud or Forgery: The signature is fake, or pages of the will have been tampered with.
- Informal Wills: The document fails to meet formal requirements, such as not being signed in the presence of two witnesses.
This is the most common type of dispute in NSW. The claimant accepts the Will is valid but argues that it is unfair because it fails to make “adequate provision” for them.
- Who can claim? Under the Succession Act 2006 (NSW), only “eligible persons” can claim, including spouses, de facto partners, children, and in some cases, grandchildren or dependents.
- What does the court consider? The court looks at the claimant’s financial needs, their relationship with the deceased, the size of the estate, and any contributions they made to the deceased’s welfare.
The Dispute Process: Step-by-Step
If a dispute arises, it doesn’t always mean a dramatic courtroom trial. In fact, the NSW legal system is designed to resolve these matters early. Here is the typical timeline:
If someone challenges the validity of the Will, they may file a “Caveat” with the Supreme Court. This effectively “freezes” the estate, preventing the Executor from obtaining Probate until the dispute is resolved.
Both sides must produce evidence to support their case.
- For Validity Claims: This often involves retrieving medical records from GPs or specialists to prove the deceased’s mental state at the time the will was signed.
- For Provision Claims: Parties must disclose their financial circumstances (assets, debts, income) to show their “need” for provision.
This is where most cases end. In NSW, mediation is often compulsory before a hearing. It involves a private, confidential negotiation facilitated by a neutral third party.
- Why Mediation? It saves the immense stress and cost of a trial. It also allows for flexible outcomes that a judge cannot order (e.g., transferring a specific item rather than just money).
If mediation fails, the matter proceeds to a hearing before a Judge in the Supreme Court. The Judge will examine affidavits, cross-examine witnesses, and make a final, binding ruling.
What Should Executors Do During a Dispute?
If you are the Executor, you have a legal duty to uphold and defend the Will.
However, you must act cautiously to avoid personal risk.
- Freeze Estate Distribution:
Do NOT distribute any assets to beneficiaries once you receive notice of a claim.
If you pay out funds and the claim later succeeds, you could be held
personally liable to repay that money. - Maintain Neutrality:
While you must defend the Will, you should not aggressively “take sides” in a way
that wastes estate funds. Your primary duty is the proper administration of the estate. - Seek Specialist Advice:
Executors are generally entitled to have their legal costs paid from the estate,
provided they have acted reasonably. Attempting to manage a dispute without a lawyer
is risky and may result in you paying your own legal costs personally.
Who Pays the Legal Costs?
The “loser pays” rule often applies in general litigation, but estate disputes are more nuanced.
- If the Claim is Successful:
The court typically orders that the claimant’s legal costs be paid out of the deceased’s estate. - If the Claim Fails:
The person challenging the Will may be ordered to pay their own legal costs
PLUS the legal costs incurred by the Executor in defending the claim.
This serves as a significant deterrent against frivolous or weak claims. - Executor’s Costs:
As long as the Executor acts reasonably, their legal fees are almost always
covered by the estate assets.
How to Avoid Disputes Before They Happen
The best defense is a strong offense. A professionally drafted Will is much harder to challenge
than a DIY kit.
- Document “Capacity”:
If you are older or have health issues, your lawyer can arrange for a doctor to verify
your mental capacity at the time of signing. - Leave Clear Reasons:
If you are leaving someone out of your Will (e.g., an estranged child), provide a separate
“Statement of Wishes” explaining why. This can be powerful evidence for your executor
to use in court. - Keep It Updated:
Ensure your Will reflects your current assets and relationships to avoid ambiguity.
generally REVOKES (Cancels) your Will entirely. If you marry and die before making a new Will, you die “intestate” (without a Will).
Exception: If your Will explicitly states it was made “in contemplation of marriage.”
generally DOES NOT revoke the whole Will, but it cancels the parts that refer to your ex-spouse. It treats your ex-spouse as if they had died before you.
Note: Separation (without official divorce) does NOT change your Will. Your separated spouse could still inherit everything unless you update your Will immediately.
How to Change a Will: The Step-by-Step Process
Locate your current Will: Review what it currently says.
List your changes: Decide who you want to add, remove, or change.
Consult a Lawyer: Don’t rely on DIY kits for amendments. The risk of invalidity is too high.
Draft a New Will: A lawyer will draft a fresh document that revokes previous versions.
Sign and Witness: You must sign the new Will in the presence of two witnesses who are not beneficiaries.
Destroy the Old Will: Once the new one is valid, destroy the old copies to avoid confusion.
Frequently Asked Questions (FAQ)
ou have 12 months from the date of death to file a Family Provision Claim. If challenging the Will’s validity (e.g., for fraud), you must act immediately to file a Caveat before Probate is granted.
No. Executors must freeze distributions once notified of a claim. If they pay out beneficiaries and the claim later succeeds, the Executor can be held personally liable to repay that money.
Rarely. Over 90% of disputes in NSW settle during compulsory mediation. Trials are expensive and risky, so the legal system strongly encourages early settlement to preserve the estate’s value.
Proceed with caution. For small estates (e.g., under $200k), legal fees can easily wipe out the entire value. A quick, low-cost settlement via negotiation is usually the only viable option.
Facing a Will Dispute? Don’t Navigate it Alone.
Whether you are challenging an unfair Will or defending one as an Executor, the financial stakes are high.
LawDocs provides expert representation to resolve disputes efficiently, often without stepping foot in a courtroom.
✅ LawDocs: Expert Litigation & Mediation Support
Get clear, honest advice on your chances of success, potential costs, and the best strategy for your case.
📞 For a confidential consultation: Call 1300 27 00 88 🌐 Visit: www.lawdocs.au
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