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Contest a Will in Port Macquarie

Contesting & Defending Wills in NSW

If you have been left out of a Will, believe you have not been adequately provided for, or you are an executor facing a claim against an estate, obtaining specialist advice early can make a significant difference.

Rayners Lawyers is a Port Macquarie law firm specialising in Wills & Estates Law. We act for both people contesting Wills and executors defending estates in family provision claims, contested estates and Will disputes throughout New South Wales.

Whether you are considering making a claim or have received notice that an estate you administer may be challenged, we can help you understand your position, assess the issues and develop a clear strategy for resolving the dispute.

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Can I contest a Will in NSW?

There are different ways in which a Will or estate may be contested.

One of the most common is a family provision claim. This is an application to the Supreme Court of New South Wales by an eligible person seeking provision, or further provision, from a deceased person’s estate.

A family provision claim may be available where you have:

  • been left out of a Will entirely;
  • received less from an estate than you believe is adequate for your proper maintenance, education or advancement in life; or
  • received nothing, or an inadequate entitlement, under the rules of intestacy where a person died without a Will.

Importantly, being eligible to make a claim does not automatically mean that a claim will succeed. The circumstances of the deceased, the claimant, the estate and other beneficiaries are all relevant.

Who can contest a Will in NSW?

For a family provision claim, you must first be an eligible person under the Succession Act 2006 (NSW).

Eligible persons can include:

  • a spouse or de facto partner of the deceased;
  • a child of the deceased, including an adult child;
  • a former spouse;
  • a person who was, at any particular time, wholly or partly dependent on the deceased and who is a grandchild of the deceased or was a member of the deceased’s household; and
  • a person who was living in a close personal relationship with the deceased at the time of their death.

For some categories of eligible persons, additional requirements must be satisfied before the Court can make an order.

We can assess your individual circumstances and advise whether you are eligible to make a claim and the matters likely to be relevant to your case.

Making a Family Provision Claim

Have you been left out of a Will or received less than you expected?

Being excluded from the Will of a parent, spouse or other loved one — or receiving substantially less than other beneficiaries — can be difficult both financially and emotionally.

The first question is not simply whether the Will appears unfair. The issue is whether the law allows you to make a claim and, if so, whether the deceased’s estate has made adequate provision for your proper maintenance, education or advancement in life.

When advising you, we consider matters including:

your relationship with the deceased;

  • the nature and extent of the deceased’s estate;
  • your present and future financial circumstances;
  • your age and health;
  • contributions you may have made to the deceased’s welfare or estate;
  • provision made for you by the deceased during their lifetime;
  • the circumstances and competing needs of other beneficiaries and eligible persons; and
  • the deceased’s testamentary intentions and any relevant statements made by them.
Every estate and every family is different. We provide practical advice about your position and the options available before significant legal costs are incurred.

Rayners Lawyers Specialising in complex wills and small business law

How long do you have to contest a Will in NSW?

Time limits apply.

A family provision application in New South Wales generally needs to be commenced within 12 months from the date of the deceased person’s death.

The Court has power to permit an application outside that period in some circumstances, but an extension should never be assumed.

If you are considering contesting a Will, obtaining advice early can also reduce the risk of the estate being distributed before your claim has been properly addressed.

Do you have to go to Court to contest a Will?

Not every Will dispute needs to end in a contested Court hearing.

Where appropriate, we seek to resolve disputes through early negotiation and mediation, with the aim of achieving a sensible resolution without unnecessary depletion of the estate through legal costs.

Where Supreme Court proceedings are necessary, family provision proceedings are ordinarily referred to mediation at an early stage.

If a negotiated resolution cannot be achieved, Rayners Lawyers can guide you through the Court process and work with experienced counsel where appropriate.

Defending a Family Provision Claim

Are you an executor facing a claim against an estate?

If you are the executor or administrator of an estate and a family provision claim is made or threatened, your role is very different from that of the beneficiaries.

An executor must administer the estate properly, respond appropriately to the claim and protect the interests of those interested in the estate.

Rayners Lawyers has particular experience acting for executors and administrators defending contested estates, including complex and high-value estates involving:

  • testamentary trusts;
  • business and succession structures;
  • blended families;
  • multiple beneficiaries and competing claims;
  • significant or illiquid assets; and
  • complex financial and estate structures.

We work with executors, accountants, financial advisers, trustees and counsel to develop a strategy appropriate to the estate.

Rayners Lawyers Specialising in complex wills and small business law

We advise executors on:

  • assessing the merits of a claim and the estate’s potential exposure;
  • responding to threatened family provision claims;
  • protecting estate assets while a dispute is unresolved;
  • complying with the executor’s obligations during Court proceedings;
  • managing competing interests between beneficiaries and claimants;
  • negotiating an appropriate settlement where possible;
  • mediation;
  • legal costs and potential costs exposure; and
  • defending Supreme Court proceedings where resolution cannot otherwise be achieved.

Obtaining advice early can give an executor more options for managing the dispute, containing costs and protecting the estate.

Challenging the Validity of a Will

A family provision claim is different from challenging whether a Will itself is valid.

Questions about the validity of a Will can arise where it is alleged that:

  • the will-maker lacked testamentary capacity;
  • the will-maker did not know and approve the contents of the Will;
  • the Will was affected by undue influence;
  • there are suspicious circumstances surrounding the preparation or execution of the Will;
  • the Will is fraudulent or forged;
  • the Will was not properly executed; or
  • the Will was subsequently revoked.

These disputes can involve very different evidence and legal principles from a family provision claim.

Rayners Lawyers advises executors, beneficiaries and other interested parties in contested probate and Will validity disputes.

Why Choose Rayners Lawyers?

Rayners Lawyers specialises in Wills & Estates Law.

Principal Lawyer Kirsty Rayner brings energy, determination and a strategic approach to contested estate matters. A fierce negotiator, Kirsty is focused on identifying the pressure points in a dispute and pursuing the best available outcome for her clients, whether through early negotiation, mediation or Court proceedings.

Rayners Lawyers has a proven track record in family provision claims, with successful outcomes achieved for our clients both inside and outside the Courtroom. To date, we have achieved a successful outcome for our client in every family provision matter in which we have acted.

We act for both claimants seeking further provision from an estate and executors defending family provision claims, giving us valuable insight into how these disputes are approached from both sides.

From our Port Macquarie office, we represent clients in contested estate matters along with our talented, handpicked Sydney barristers throughout New South Wales and Australia. 

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Rayners Lawyers Specialising in complex wills and small business law

Frequently Asked Questions

Can an adult child contest their parent’s Will?  

Potentially. A child of the deceased is an eligible person for the purposes of a family provision claim in NSW. Eligibility alone does not determine whether a claim will succeed. The Court considers a range of matters relating to the claimant, the deceased, the estate and competing beneficiaries.

Can I contest a Will if I was left nothing?  

Potentially. If you are an eligible person, you may be able to make a family provision claim seeking provision from the estate even though the Will makes no provision for you.

Can I contest a Will if I received something, but not enough?  

Potentially. A family provision claim can seek further provision from an estate. You do not have to have been completely excluded from the Will.

How long do I have to contest a Will?   

A family provision application in NSW generally must be commenced within 12 months of the date of death. If you are considering a claim, you should obtain legal advice as early as possible.

Can a Will be contested after Probate?   

The granting of Probate does not necessarily prevent a family provision claim. The relevant limitation period for a family provision application generally runs from the deceased’s date of death rather than the date Probate is granted.

Will my matter have to go to a Court hearing?   

Not necessarily. Many estate disputes are resolved through negotiation or mediation. Family provision proceedings that are commenced in the Supreme Court are ordinarily referred to mediation before a final hearing.

Can an executor negotiate a settlement?   

Yes, but an executor should obtain advice about their obligations and the interests of the estate and beneficiaries before agreeing to a settlement. Depending on the circumstances, Court approval may also be relevant.

What does it cost to contest a Will?   

The cost depends on the complexity of the estate, the issues in dispute, the evidence required and whether the matter can be resolved through negotiation or mediation or proceeds further through the Court.

We discuss likely costs and the available funding arrangements with you before you decide how to proceed.

Speak to a Port Macquarie Wills & Estates Lawyer

Whether you are considering contesting a Will, have been left out of an estate, or are an executor whoneeds to defend a claim, obtaining advice early can help you understand your position and your options.

Rayners Lawyers specialises in Wills & Estates Law and acts in contested estate matters throughout New South Wales.

Contact our Port Macquarie office to arrange an initial discussion about your Will or estate dispute.

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MARGOT BEACH AND SUSANNA WELLS

“We recently used the services of Rayners Lawyers in Oatley. From the beginning of the process we were extremely satisfied with the way in which our matter was both sensitively and professionally handled. Kirsty was both approachable and understanding in guiding us through the process.

She answered our many questions and gave sound advice where necessary, which increased our confidence in the decisions we made for our future. This has been a painless and satisfying experience for us both. Should we need a solicitor in the future we would have absolutely no hesitation in using Rayners Lawyers again. We will also be recommending this business to both family and friends without hesitation.” 
Rayners Lawyers Specialising in complex wills and small business law


Rayners Lawyers Specialising in complex wills and small business law

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PO Box 569, Port Macquarie NSW 2444
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 02 6583 4312

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