Will Disputes
After the death of a loved one, estate matters can involve long-standing family relationships, caregiving responsibilities, financial dependence, blended families, children from a former marriage, stepchildren, de facto relationships, and how the executor manages the estate.
If you believe you have been unreasonably excluded from an estate, have received an inadequate share of the estate, or have doubts about whether the will genuinely reflects the deceased’s wishes or whether the executor is properly managing the estate, you may be entitled to bring a will dispute claim.
Estate disputes are not all the same kind of matter. Some matters seek a larger share of the estate; some challenge whether the will itself is valid; others arise during the administration of the estate. Different types of disputes are governed by different legal principles, evidentiary requirements, and approaches.
NS Legal can assist clients with family provision claims, will validity disputes, executor disputes, estate administration disputes, and other estate-related litigation, and can provide legal advice appropriate to the circumstances of each matter.
Common Types of Will Disputes
In practice, estate disputes can generally be divided into the following categories:
- Family provision claims;
- Will validity disputes;
- Executor and estate administration disputes;
- Intestacy disputes;
Other disputes relating to the distribution of the estate, the interpretation of a will, or the ownership of assets.
The legal basis, time limits, and approach can differ for each type of dispute, so before taking action it is important to first identify which type of matter applies to you.
Family Provision Claim
When You Can Apply for a Larger Share of the Estate
A family provision claim usually arises when an applicant believes they have not received adequate provision from the estate. Common situations include:
- A child is entirely excluded from the will;
- A spouse or de facto partner receives a share insufficient to maintain their living needs;
- A person who provided long-term care to the deceased does not receive a corresponding provision;
- A person who was financially dependent on the deceased does not receive adequate provision;
- In a blended family, conflict arises between the current spouse and children from a former marriage;
The majority of the estate is left to one child, a charity, or another third party.
Who Can Make a Family Provision Claim
In NSW, not everyone who is dissatisfied with a will can make a family provision claim. People who may commonly be eligible to apply include:
- A spouse;
- A de facto partner;
- A child;
- A former spouse;
- A grandchild who, in certain circumstances, was dependent on the deceased;
- A person who lived with the deceased and was dependent on them;
A person who was in a close personal relationship with the deceased.
Whether a person is eligible depends on the particular family relationship and circumstances of dependence.
Factors the Court Usually Considers
When determining a family provision claim, the court will usually consider:
- The relationship between the applicant and the deceased;
- The applicant’s age, health, and living needs;
- The applicant’s income, assets, and liabilities;
- Whether the applicant cared for the deceased or contributed to the estate;
- Whether the deceased had assumed responsibility for financial support during their lifetime;
- The overall size of the estate;
- The financial circumstances of other beneficiaries;
- Whether the existing provisions in the will are adequate;
The family background and history of the relationship between the parties.
For this reason, the focus of a family provision claim is usually not simply to assert that one should receive more of the estate, but to demonstrate through evidence why the existing arrangements are inadequate and what a reasonable adjustment should be.
Time Limits for a Family Provision Claim
In NSW, a family provision claim should, in principle, be made within 12 months of the deceased’s death. After this period, an applicant may still apply to the court for an extension of time, but must explain the reason for the delay and obtain the court’s leave.
For anyone who believes they may have a right to make a claim, obtaining legal advice early is usually very important. If the estate has already been distributed, subsequent steps can become more complex.
Will Validity Disputes
When a Will Can Be Challenged
Beyond the proportions in which the estate is distributed, if a person believes that a will does not genuinely reflect the deceased’s wishes, or that there is a problem with the will itself, a will validity dispute may be involved.
Common grounds for dispute include:
- The deceased lacked sufficient testamentary capacity when signing the will;
- The deceased did not understand the contents of the will and its legal consequences;
- The will was signed under undue influence or pressure;
- The will involved fraud or forgery;
- There were problems with the signing and witnessing of the will;
- A more recent and valid will exists.
These matters usually require a combined analysis of medical records, the lawyer’s file, witness evidence, and the circumstances of signing.
Testamentary Capacity
Testamentary capacity is primarily concerned with whether the deceased had sufficient capacity, at the time of signing the will, to understand:
- That they were making a will;
- Broadly what assets they owned;
- Who might have a reasonable expectation in relation to the estate;
What consequences the provisions of the will would produce.
If the deceased was suffering from dementia, serious illness, cognitive impairment, or another condition affecting their judgment at the time, testamentary capacity may become the focus of the matter.
However, being older, frail, or unwell does not automatically mean that a will is invalid. The key remains the actual state of capacity at the time of signing.
Undue Influence
Undue influence usually refers to a situation where a person, through pressure, control, or manipulation, causes the deceased to make a will that does not reflect their true wishes.
Common risk situations include:
- The deceased was highly dependent on a particular family member;
- Contact with the outside world was noticeably restricted;
- The contents of the will suddenly changed significantly;
- A beneficiary was heavily involved in the process of arranging the will;
Family members were completely unaware that the will had been changed.
These matters usually require a detailed analysis of family relationships, care arrangements, financial control, and the circumstances in which the will was signed.
Executor and Estate Administration Disputes
What to Do If an Executor Mismanages the Estate
An executor or administrator has a duty to manage the estate as required by law and to treat beneficiaries fairly. If an executor is unresponsive for long periods, fails to provide basic information, delays dealing with the estate, does not properly safeguard estate assets, or clearly favours one party, beneficiaries may need to seek legal advice. In serious cases, the court may even require the executor to provide estate accounts, or order that the executor be replaced.
How an Executor Should Respond to a Will Dispute
If an executor receives a family provision claim, a challenge to the will, or another estate claim, it should be handled carefully. An executor’s duty is not to protect their own interests, but to administer the estate according to law and, where necessary, to respond to disputes on behalf of the estate.
An executor usually needs to:
- Keep complete records of the estate;
- Retain information about assets and liabilities;
- Properly preserve records of communications;
Avoid distributing the estate hastily before the dispute is resolved.
Intestacy and Other Estate Disputes
Estate Disputes Can Arise Even Without a Will
Estate disputes do not only arise where there is a will.
If the deceased did not leave a valid will, the estate is dealt with according to the rules of intestacy. However, family members may still come into dispute over matters such as:
- Who should administer the estate;
- Who is entitled to inherit;
- Whether the proportions of distribution are correct;
- Whether a particular person should receive greater provision;
- and other related questions.
In addition, in practice the following may also arise:
- Who has the right to apply for a grant of probate or letters of administration;
- Whether a particular document constitutes a will;
- How the contents of a will should be interpreted;
- Whether there are errors in the will;
- Whether promises made during the deceased’s lifetime should be honoured;
- Whether superannuation, insurance, jointly owned property, or trust assets fall within the scope of the dispute;
- and other estate-related disputes.
Does a Will Dispute Have to Go to Court?
Negotiation and Mediation
Will disputes often involve both legal issues and family relationships.
For this reason, many matters are first dealt with through communication between lawyers, negotiation, or mediation, rather than necessarily proceeding straight to a formal hearing.
During mediation, the parties usually exchange evidence, assess the risks of the matter, and attempt to reach a legally binding settlement.
Materials commonly required before mediation include:
- The will document;
- Information about the estate’s assets;
- Financial documents;
- Medical records;
- Evidence of care and contributions;
Background information about family relationships.
If negotiation or mediation cannot resolve the dispute, the matter may still proceed to court, where the court will make a final decision based on the evidence.
How NS Legal Can Help
NS Legal can assist clients with all kinds of will disputes and estate disputes, including family provision claims, will validity disputes, executor disputes, estate administration disputes, and disputes between beneficiaries and executors.
We can assist clients to:
- Assess whether they are eligible to make a family provision claim;
- Analyse whether there are grounds to challenge the validity of a will;
- Review the will, medical records, lawyers’ notes, and related evidence;
- Assist applicants in communicating and negotiating with executors;
- Assist executors in responding to estate claims;
- Assist beneficiaries in requesting information or estate accounts from executors;
- Prepare mediation materials and settlement proposals;
- Represent clients in estate disputes in court proceedings;
Provide legal advice on the distribution of the estate, potential claims, and the responsibilities of executors.
Frequently Asked Questions
I have been excluded from the will — can I claim a share of the estate?
You can first assess whether you are eligible to make a family provision claim. Spouses, de facto partners, children, and some people who were dependent on the deceased may be eligible to apply for a larger share of the estate. Whether a claim will succeed depends on the particular circumstances.
If a will looks unfair, can it always be challenged?
Not necessarily. A family provision claim and a will validity dispute are different types of matter. Simply feeling that the outcome of the distribution is unfair is not necessarily enough to challenge the will itself.
I suspect the elderly person no longer had capacity when signing the will — what should I do?
You should preserve the relevant evidence as soon as possible, including medical records, care records, records of communication between family members, and information about the circumstances of signing. A lawyer can help assess whether there is a basis to challenge the validity of the will.
Are there time limits for will disputes in NSW?
Different types of dispute are subject to different time requirements. In particular, a family provision claim should, in principle, be made within 12 months of the deceased’s death. We recommend obtaining legal advice early to avoid affecting subsequent steps.
Can a dispute still be raised after the estate has been distributed?
In some cases it is still possible, but it is usually more difficult to deal with. The earlier an objection is raised, the better it is for protecting your own interests.
The executor keeps ignoring me — can I require them to provide information about the estate?
In many cases, beneficiaries have a right to be informed of the progress of the estate administration. If an executor delays for long periods, lacks transparency, or refuses to communicate, you may consider seeking legal advice.
Need legal help? Contact NS Legal
We provide clear, practical legal advice to help you understand your position and your next steps.
