Contested Will litigation in NSW

We run contested Will claims, and family provision claims.

Contested Will claims are when a challenge is made to a Will, including capacity and undue influence challenges, or because the formal requirements of the Will were not complied with.

A family provision claim is a claim under NSW legislation for provision out of the estate of the deceased. The claim can be for either provision (if the claimant was left out of the Will entirely) or additional provision (if the claimant believes they did not receive adequate assets from the Will).

When an estate dispute cannot be resolved by agreement, you need litigators who will run it properly. Contested Will and family provision claims are heard in the Supreme Court of NSW and follow their own procedural framework, from affidavit evidence and subpoenas to expert medical evidence on capacity. We act for claimants and for executors defending an estate, from our offices in Newcastle, for clients across the Hunter and NSW.

How we help

We promptly assess the claim, then run it firmly and efficiently. We:

  • Give you a realistic view of prospects and costs before proceedings start.
  • Bring or defend family provision claims and challenges to a Will’s validity.
  • Build the evidence, including medical records, attendance notes and expert evidence on capacity.
  • Represent you at mediation, where most matters resolve, and at a final hearing if they do not.

Why clients choose Mullane Lindsay

This work brings together our litigation team, led by Director Kristy Nunn, and our Wills and estates team, led by Cavelle Lindsay and Special Counsel and NSW Law Society Accredited Specialist, Lesley McDonnell. Backed by the firm since 1976, we combine estate knowledge with genuine litigation strength, and we keep costs proportionate to the value of the estate.

FAQs

If it cannot be resolved by agreement, a contested Will claim and/or family provision claim is filed in the Supreme Court by way of a Statement of Claim or Summons. The claim proceeds by the service of affidavit evidence, notifying the interested parties, subpoenas, expert medical evidence where capacity is in issue, mediation (where most matters settle), and a final hearing if needed. Early advice on prospects and costs is essential.

Capacity is a legal question, not a medical diagnosis. By the test from Banks v Goodfellow: the Will-maker must have understood that they were making a Will and its effect, the nature and extent of their estate, and the claims of those who might expect to benefit, and be free of a disorder of the mind or delusions affecting those decisions. Capacity is judged at the moment the Will was signed.

It must be proven that the Will-maker’s free will was actually overborne by the conduct of another and the influence amounted to coercion, with the result that the Will does not reflect the true testamentary intentions of the Will-maker.

Probate undue influence is not presumed from a relationship of influence or dependency. The party alleging it bears the burden of proving actual coercion. Relevant factors may include the deceased’s vulnerability, the influencer’s opportunity and control, actual pressure, the influencer’s involvement in preparing the Will, and radical or unexplained changes from previous intentions.

The general rule is that costs follow the event, but the Court has a broad discretion.

Legal costs in contested Will litigation are not automatically paid from the estate. Where the litigation was reasonably necessary because the circumstances surrounding the Will reasonably called for investigation, it is appropriate for the estate to pay the legal costs.

An executor or administrator is generally entitled to indemnity from the estate for costs properly and reasonably incurred in administering the estate, including the reasonable costs of defending or participating in litigation. However, the protection is not absolute. The Court may reduce or deny indemnity, or impose personal costs, where an executor acts improperly or unreasonably, rejects a reasonable settlement offer, fails to place relevant evidence before the Court, or litigates for personal benefit rather than proper estate administration.

In family provision proceedings, if a claimant is successful in obtaining an award for provision (or further provision) the usual position is:

  • the claimant’s reasonable costs are paid from the estate on the ordinary basis; and
  • the executor’s properly incurred costs are paid from the estate, commonly on an indemnity basis.

A court may cap costs, so that they are proportionate to the estate and the provision awarded.

An unsuccessful claimant has no automatic entitlement to costs from the estate. An adverse order is likely where the claim was frivolous, vexatious, had no reasonable prospects, was pursued disproportionately or involved improper conduct.

It is not possible to prevent an eligible person from making a family provision claim, other than by obtaining a release order from the Supreme Court of NSW. This is very rare. For practical purposes, therefore, in order to justify a release some particular circumstances would be needed (such as the eligible person already receiving assets in their lifetime). The costs of applying for a Supreme Court release and the difficulty in obtaining the release usually makes this an unattractive option.

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