The Legal Process of Contesting a Will in New South Wales: Timelines and Procedures

Losing a loved one is difficult enough, but when disputes arise over their will, it can lead to emotional and financial stress for the family. If you believe a will does not fairly reflect the deceased’s wishes or fails to provide for eligible dependents, you may have grounds for contesting a will in New South Wales (NSW). The legal process involves strict timelines and procedural requirements, so it is essential to act quickly and seek professional guidance.

At CM Lawyers, we specialize in challenging a will and provide expert legal advice to help our clients navigate this complex process. In this guide, we outline the key steps involved, the timeframes to be aware of, and how to proceed effectively.

A Family’s Struggle: The Thompson Case

When Robert Thompson passed away, his daughter Emily was shocked to find that she had been left out of his will entirely. Instead, the bulk of the estate was left to her younger brother, James, with whom she had always had a strained relationship. Emily had been financially dependent on their father, having cared for him in his final years, and felt deeply betrayed by the will’s contents.

Determined to seek justice, Emily decided to contest the will. However, she soon realized that the process was complicated and time-sensitive. With the help of experienced will contesting lawyers, she navigated the legal hurdles, gathered evidence, and ultimately secured a fairer distribution of the estate.

Emily’s story highlights the importance of acting quickly and obtaining the right legal advice when considering how to contest a will.

Grounds for Contesting a Will in NSW

Before proceeding with a will contest, you must establish valid legal grounds. In NSW, you can challenge a will under the following circumstances:

• Lack of Testamentary Capacity – The deceased was not of sound mind when they made the will, possibly due to dementia, illness, or cognitive impairments.

• Undue Influence or Coercion – The deceased was pressured or manipulated into making changes to their will that did not reflect their true intentions.

• Fraud or Forgery – The will was altered without the deceased’s knowledge or was fraudulently created.

• Improper Execution – The will was not signed and witnessed according to NSW legal requirements.

• Failure to Provide Adequate Provision – The deceased did not make reasonable financial provisions for eligible dependents, such as spouses, children, or other dependents.

If you suspect any of these issues, consulting with the best wills and estates lawyers in Sydney is crucial to determine the strength of your case.

The Legal Process and Timelines for Contesting a Will in NSW

Navigating the legal process of contesting a will in NSW requires adhering to strict deadlines and following procedural steps. Below is a step-by-step breakdown:

1. Time Limits for Filing a Claim

• Deadline: You must file a family provision claim within 12 months from the date of the deceased’s death.

• Extensions: A claim may be allowed beyond this period if exceptional circumstances exist, but extensions are at the court’s discretion.

2. Notifying the Executor

• Action: Inform the executor of the estate about your intention to contest the will.

• Why It’s Important: This may prevent the premature distribution of assets and open discussions for an amicable resolution.

3. Gathering Evidence

• Documents Needed: The will, medical records (if questioning capacity), financial dependency evidence, witness statements, and any correspondence supporting your claim.

• Legal Support: Will contesting lawyers can help collect and organize this evidence effectively.

4. Filing the Claim

• Court Application: A formal application must be lodged with the Supreme Court of NSW, outlining the grounds for challenging the will and the relief sought.

• Supporting Affidavit: A document explaining your relationship with the deceased, financial situation, and why the will is unfair.

5. Mediation

• Why Mediation? The court often requires both parties to attend mediation to resolve disputes outside of trial.

• Success Rate: Mediation is often successful in protesting a will without the need for costly litigation.

6. Court Hearing (If Necessary)

• If Mediation Fails: The case proceeds to trial, where both parties present evidence.

• Court Decision: A judge will rule on whether the will is upheld, altered, or a provision is granted to the claimant.

7. Distribution of the Estate

• Post-Judgment: Once a decision is reached, the executor distributes the estate based on the court’s ruling.

NSW Will Contesting Timeline

Below is an estimated timeline of contesting a will, including the key action in every stage.

Seeking Legal Guidance

Contesting a will in NSW requires a thorough understanding of legal grounds, strict adherence to timelines, and meticulous preparation. The story of Emily Thompson illustrates the challenges involved and the importance of seeking professional guidance early in the process. At CM Lawyers, we are committed to helping you achieve a fair outcome while providing compassionate support.

If you are considering challenging a will, contact us today for expert legal assistance.  At CM Lawyers, we provide professional legal support to clients facing estate disputes. Our team specializes in:

• Expert Legal Advice: Assessing the merits of your case and guiding you through each step of the process.

• Comprehensive Support: Managing all aspects of contesting a will, from filing documents to court representation.

• Mediation Services: Helping resolve disputes amicably before trial.

• Transparent Communication: Keeping you informed and confident throughout the case.

Embarking on the journey of contesting a will can be overwhelming, but you don’t have to face it alone. Contact CM Lawyers today to schedule a consultation. Let our expertise in wills and estates law guide you toward a resolution that honors your loved one’s true intentions and ensures a fair distribution of their estate.