What Can I Do About An Unfair Will? (NSW)

The death of a loved one is a challenging time, so discovering that you have been unfairly treated in their will can only add emotional and even financial stress. If you feel that a will is unfair, there are legal avenues to pursue in New South Wales (NSW) to address the issue. In that state, the Succession Act 2006 governs wills and estates, allowing eligible parties to challenge the validity of a will or seek adequate provision under specific circumstances. This article outlines the steps you can take if you believe a will is unfair in NSW.

When is a will “unfair”?

A will might be considered unfair because the document itself is invalid or fraudulent. However, it is more common for people to complain that a will is unfair because they feel that they were not properly provided for in it.   

Challenging the validity of an unfair will

When someone has reason to believe that a will is flawed or improperly executed, they can lodge a probate caveat with the Supreme Court of New South Wales. Under the Supreme Court Rules 1970, only someone with a legitimate interest in the deceased estate can lodge a caveat, and temporarily prevent the probating of a will. Common grounds for challenging validity include:

Lack of testamentary capacity

The testator did not understand the nature and effect of the will, their assets, or the claims of potential beneficiaries due to reduced mental incapacity.

Undue influence

The testator was pressured or coerced into making the will.

Fraud or forgery

The will was tampered with or fraudulently created.

Failure to comply with formalities

The will does not meet the legal requirements for execution.

An experienced wills and estates solicitor can evaluate whether a will meets the legal requirements and whether there are any grounds to challenge its validity. When there are concerns about undue influence, fraud, or lack of capacity, it will be necessary to gather evidence such as medical records and witness statements.

Contesting the provisions of a will

A will itself may be valid but still unfair if it fails to provide for the deceased’s closest family and dependents. In NSW, the law respects a testator’s freedom to distribute their assets as they wish, but there is an acknowledgement that some people have a moral and/or legal claim on the deceased estate. A family provision order can remedy the situation to make adequate provision for the proper maintenance, education, or advancement in life of people with a legitimate claim.

For example, a father may make a will that leaves very little (or nothing) to a daughter, while leaving the bulk of their estate to his son. In those circumstances, the father may feel justified in his testamentary choices, particularly if the main estate asset is a business that he intends the son to manage. However, succession law in NSW prioritises the financial needs of children over a parent’s preferences. The daughter in those circumstances could contest the will as unfair if she has a significantly greater financial need than her brother.

Who can make a family provision claim? 

Under the Succession Act, only the following eligible people can contest an unfair will in NSW:

• the deceased’s spouse (including de facto partners)
• the deceased’s children (including adopted children, and stepchildren in some circumstances)
• former spouses
• a person who was, at some point, at least partly dependent on the deceased, if they are a grandchild or a member of the deceased’s household
• a person who was living in a close personal relationship with the deceased at the time of their death.

Process for making Family Provision Claim

An eligible person who is seeking a greater share of a deceased estate must notify the executor of their intention to file a claim and then commence proceedings within the statutory time limit (typically 12 months from the date of death). When making a claim, it is important to compile sufficient evidence, such as banking records demonstrating financial need, and evidence of the deceased’s intentions, such as informal documents, correspondence, and witness statements.

Many estate disputes in NSW are resolved through mediation, which is a less formal and costly process than litigation. Mediators facilitate discussions between parties to reach a mutually acceptable settlement. If mediation fails, the matter proceeds to the Supreme Court of NSW. This court has wide discretion to make orders modifying the will’s provisions or redistributing the estate to ensure fairness. The court will consider various factors when assessing whether a will is unfair to the claimant, including:

• the relationship between the claimant and the deceased
• the deceased’s moral obligation to the claimant
• the claimant’s financial needs and resources and
• the size and nature of the estate.

If you have concerns about what to do about an unfair will in NSW, the first step is to consult Go To Court Lawyers. Our experienced solicitors can assess the strength of your claim and guide you through the legal process. They will review the will, your relationship with the deceased, and your entitlement under the Succession Act. Call 1300 636 846 for any legal assistance.