When to Contest a Will

When to Contest a Will

It is typically quite difficult to contest a will, but it is not impossible under the right circumstances. Approximately 99% of wills pass through probate without issue, meaning you must call a solicitor the moment you feel that something is not right. Wills are viewed by the courts as a voice of the testator, or the person who created the will. Due to the fact that the testator is no longer alive to speak directly about his or her wishes, the courts tend to side with the will in most cases.

Anyone who may have an interest to gain from the will may choose to contest it, and the most successful challengers are typically spouses. In many cases where challengers successfully contest the will, they do so by proving that the testator lacked testamentary capacity or was unduly influenced or persuaded to write the will in a particular way. If you can prove either of these two points, your chances of winning rise quite a bit.

If you are successful in contesting the will, the will may be voided in its entirety or only in part. Sometimes, a provision previously on the will that was removed or altered can be reinstated. If the entire will is voided, the court will distribute the property as if no will existed in the first place. This distribution will follow the law and is guided by familial relationships.

Why You May Not Be Entitled

The Family Provisions Act of 1982 (NSW) allows a number of people to contest a will so long as they fall under one of several specific categories. These eligible persons are the wife or husband of the deceased at the time of their death (including de facto partners and life partners), a child of the deceased, a former wife or husband, or a person that is wholly or partly dependent upon the deceased. In addition, a grandchild that was at any time a member of the same household as the deceased is also qualified.

If you do not fall under any one of these categories, you do not have grounds to begin contesting a will in NSW. If you do fall into one of the categories, you can immediately bring an action against the estate of the deceased person. If your case is valid and can be proven to the courts, you have a real chance of winning.


Within Australian law, a testator who has the capacity to make a will can choose to do whatever they want with his or her assets, including giving them away to charities. Therefore, if it is indicated in the will, the assets will be given to charity on behalf of the deceased unless you can make a valid action against his or her estate. In such circumstances, you and your solicitor must establish that you have a true and valid financial need warranting a claim. If you cannot prove that you have a real financial need, you are not likely to win your case. Fortunately, reputable solicitors in NSW can help you discover if you are eligible for a claim and help you prove your case before the courts.

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