Do I Have to Go to Court to Challenge a Will in NSW?

Do I Have to Go to Court to Challenge a Will in NSW?

When a loved one passes away, disputes over their Will can be stressful and confusing. If you believe a Will is unfair or invalid, you may be wondering do I have to go to Court to challenge it?

The short answer is not necessarily.

In NSW, there are a few ways a dispute about a Will can arise, however not every matter ends up in a Court hearing.

What does it mean to “challenge” a Will?
Challenging a Will can mean a few different things depending on what you believe is wrong with it.

For example, you might believe that:

• The deceased did not have the mental capacity to make the Will

• The deceased was pressured or externally influenced

• The Will was forged or is fraudulent

• The deceased did not properly understand or approve the contents of the Will

• There may be another more recent valid Will

In circumstances like the above, the issue may be as to whether the Will itself is legally valid.

Alternatively, you may accept that while the Will is valid, you might have not been adequately provided for by the testator. This is a different type of claim known as a family provision claim.

What if I think the Will is invalid?

In the case you believe a Will invalid, you may be able to take steps to prevent probate from being granted while the dispute is considered.

One option available to you would be to lodge a caveat with the Supreme Court of NSW. A caveat can prevent a grant of probate being granted whilst the contested issues are being addressed.

This does not necessarily mean that you must immediately attend Court, as the parties will usually resolve the dispute without a final hearing. However, if the dispute cannot be resolved, then formal proceedings may have to ultimately be brought in the Supreme Court of NSW.

What if I was left out of the Will?

Being left out of the Will does not necessarily mean that the Will is invalid, it could mean that perhaps you were not adequately provided for. In that case you may be able to make a family provision claim under Chapter 3 of the Succession Act 2006 (NSW).

A family provision claim is essentially an application to the Court that, despite the terms of the Will, you should receive further provisions from the deceased’s estate.

Whether you can make such a claim, would be dependent on factors such as your relationship with the deceased as well as your circumstances.

More importantly, a family provision claim does not usually result in a trial.

Do all Will disputes go to trial?

No. Court proceedings and a Court hearing are not necessarily the same thing.

Parties can negotiate and attempt to resolve a dispute before it reaches a final hearing.

Alternate Dispute Resolution is commonly used to try to resolve contested estate matters. Furthermore, all proceedings involving a family provision application are referred to mediation before heading to Trial under Clause 31 of the Supreme Court Practice Note SC EQ 07.

If the parties reach an agreement, then the dispute is resolved without a Judge determining the matter at a final hearing. You may be able to resolve your dispute through negotiation or mediation without the need to attend a final Court hearing. In fact, more than 90% of disputes are resolved this way and don’t require a trial. Negotiated agreements can be formalised by the Court by way of consent orders and can carry the full legal weight of the Court's powers to enforce.

However, in the rare instance that no agreement can be reached between the parties, then the matter may proceed to a hearing where the Court determines the dispute.

So, do I have to physically go to Court for Directions?

Not necessarily.

In most cases the parties don’t attend, as their Lawyer will appear in their place and argue their case.

However, if you commence or become involved in a formal Supreme Court proceeding, you should expect that there may be Court related requirements and, depending on how the matter progresses, there may be an obligation to attend.

The exact process will ultimately depend on why you are challenging the Will and what stage the estate is currently at.

In conclusion

If you believe a Will is unfair or invalid and commence proceedings, chances are you may never have to walk into a Courtroom to challenge it. The first step would be to understand what it is you are challenging. Whether you are disputing the validity of the Will or whether you are seeking further provision from the estate can lead to very different legal processes.

Estate disputes can be subject to strict time limits and procedural requirements, therefore obtaining legal advice early on based on your individual circumstances is critical.

Contact us for a free thirty-minute consultation with an estate planning lawyer.

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.

Photo by Saúl Bucio on Unsplash