The death of a loved one, particularly a Property Owner in Sydney, often unveils a Will that causes shock, distress, or a sense of injustice. Whether you believe you were unfairly excluded or that the deceased lacked the mental capacity to sign, the process of challenging or Contesting a Will is governed by strict Law and critical deadlines set by the Supreme Court of NSW. Navigating this emotional and complex terrain requires the immediate expertise of Estate Dispute Lawyers Sydney to assess your eligibility, preserve your rights, and secure a fair share of the deceased estate. Acting quickly is not optional—it is a legal necessity.
Understanding the Two Legal Avenues for Challenging a Will in NSW
In Sydney, there are two distinct legal grounds for disputing a Will, and Estate Dispute Lawyers Sydney specialise in both:
1. Challenging the Validity of the Will
This challenge argues that the document itself is not the deceased’s last, valid testament and should be set aside completely. If successful, the estate is distributed either under an earlier valid Will or, if none exists, according to intestacy rules. Grounds for invalidity include:
- Lack of Testamentary Capacity: The deceased lacked the sound mind, memory, and understanding required to make a Will (e.g., they suffered from advanced dementia or a debilitating illness).
- Undue Influence or Coercion: The deceased was pressured, manipulated, or coerced into signing the Will against their true wishes, often by a beneficiary.
- Improper Execution or Forgery: The Will was not correctly signed and witnessed according to the requirements of the Succession Act 2006 (NSW), or the document is a forgery.
2. Contesting a Will: The Family Provision Claim
This is the more common form of dispute and does not challenge the Will’s validity. Instead, it argues that the Will fails to make adequate provision for an eligible family member’s proper maintenance, education, or advancement in life. This claim is made under the Succession Act 2006 (NSW).
Eligibility and the Critical 12-Month Deadline for Contesting a Will
One of the most crucial pieces of advice offered by Probate Lawyers Sydney is regarding the strict timeframe for a Family Provision Claim.
Who is an Eligible Person?
Not everyone can contest a Will. Law in NSW restricts the right to claim to “eligible persons,” typically including:
- The deceased’s spouse or de facto partner.
- The deceased’s children (including adopted children).
- A former spouse of the deceased.
- A person who was, at any particular time, wholly or partly dependent on the deceased and who was a grandchild or member of the same household.
- A person who was living in a close personal relationship with the deceased at the time of death.15
The 12-Month Time Limit
The most critical deadline is 12 months from the date of the deceased’s death to file the Family Provision Claim in the Supreme Court of NSW. This deadline is strictly enforced. Missing it almost certainly forfeits your right to claim. Estate Dispute Lawyers Sydney advise prompt action to gather evidence and prevent the Executor from distributing the deceased estate assets prematurely.
The Role of Estate Dispute Lawyers Sydney in Securing Your Claim
Estate Dispute Lawyers Sydney are essential in navigating the legal process, from the initial assessment through to mediation and settlement.
Case Assessment and Evidence Gathering
Your lawyer’s first role is to assess the strength of your claim based on the two core requirements for a successful Family Provision Claim:
- Eligibility: Do you fall into one of the eligible categories under the Succession Act?
- Lack of Adequate Provision: Given the size of the estate, your financial needs (including health, age, and future needs), and your relationship with the deceased, was the provision (if any) in the Will inadequate?19
The lawyer guides the meticulous gathering of evidence—financial records, medical reports, and detailed affidavits outlining the nature and duration of your relationship with the deceased and any contributions you made to the Property buy sell assets or welfare of the deceased.
Filing a Caveat to Protect Property Assets
If you are Challenging the Validity of the Will (e.g., due to undue influence), your solicitor can immediately file a Caveat with the Supreme Court. A caveat is a legal notice that prevents the Grant of Probate from being issued, effectively freezing the distribution of the deceased estate and preventing the Executor from dealing with major assets, particularly real estate. This is a vital protective measure when the validity of the Will is in doubt.
Strategic Mediation and Negotiation
The vast majority of Will disputes in Sydney are resolved outside of a formal court hearing, usually through Mediation. The Supreme Court strongly encourages, and often mandates, mediation as a means of reducing legal costs and stress. Your lawyer’s role here is highly strategic:
- Negotiation: Presenting a strong legal case to the Executor and other beneficiaries to facilitate a fair settlement offer.
- Mediation Advocacy: Representing your interests during the confidential mediation session, ensuring all relevant evidence is tabled and negotiating a legally binding Terms of Settlement to resolve the dispute efficiently.
Dealing with Real Estate and Property Management Assets
Many disputes centre on the allocation of Property buy sell assets, which often represent the majority of the deceased estate’s value.
Valuing the Property Portfolio
If the estate includes Property Management investments or high-value residential real estate, the lawyer ensures accurate, independent valuations are obtained. The true net value of the estate—after accounting for liabilities like mortgages and legal costs—forms the basis of any claim for adequate provision. Disputes over the valuation or forced sale of property are common, and the solicitor provides the expert Law representation needed to secure your interest in the asset.
Conclusion
If you believe you have grounds for Contesting a Will or challenging its validity in Sydney, time is running out. The strict 12-month limit for a Family Provision Claim under the Succession Act 2006 (NSW) demands immediate legal consultation. Estate Dispute Lawyers Sydney provide the specialized expertise required to navigate the complexities of eligibility, evidence, and negotiation, protecting your rights to the deceased estate and ensuring you receive the proper provision the law mandates.
Questions and Answers
The absolute deadline for making a Family Provision Claim in NSW is 12 months from the date of the deceased’s death, as mandated by the Succession Act 2006 (NSW).30 Missing this deadline makes a claim extremely difficult and rare.
The primary grounds for Challenging the Validity of a Will include the deceased lacking Testamentary Capacity (sound mind), the Will being made under Undue Influence or coercion, or the Will being a forgery or improperly executed according to Law.31
Yes. If the validity of the Will is being challenged, Estate Dispute Lawyers Sydney can file a Caveat with the Supreme Court of NSW, which prevents the Grant of Probate from being issued, effectively freezing the Executor’s ability to sell Property buy sell assets or distribute the deceased estate.32
No. Success in Contesting a Will (via a Family Provision Claim) requires proving two things to the court: first, that you are an eligible person under the Succession Act 2006 (NSW), and second, that the Will failed to make adequate provision for your proper maintenance, education, or advancement in life, considering your needs and the size of the deceased estate.