Are you concerned that the Will of loved one was made in circumstances where he/she did not have capacity, or was not exercising their own free will when the Will was made.
Estate Disputes are difficult to navigate and require specialised knowledge – any potential claimant should seek the very best legal advice.
The Law Office of Conrad Curry has been conducting estate litigation for over 28 years and have experienced and resolved just about every legal problem associated with estate disputes for our clients. Our Estate Dispute lawyers are here to help.
Invalid Wills
A Will which meets the formal requirements under the Succession Act will be presumed to be valid. However, the Court may set aside the document as invalid in certain circumstances, most commonly where the deceased did not know and understand the contents of the Will or their free will was overborne when the Will was made.
Some common examples include:
- Compulsion, duress, or undue influence on the Will maker.
- Insane delusion
- Lack of knowledge and approval
- Incapacity, mental affliction
- Forgery
- Fraud
Where it is proven that the Will is invalid the Court can pass over the Will and look to a prior Will, or, if none exists, then to the laws of intestacy which apply in the absence of a valid Will.
It is imperative that you act quickly if you believe that the Will does not reflect the Will maker’s wishes and intentions.
Other Disputes
Often problems arise even where there is a valid Will:
- Breaches of duties by executors
- The failure of certain terms because the assets dealt with no longer exist
- Partial or total intestacy where assets have not been disposed of under a will
- Problems with construction in wrongly specifying the asset or poorly worded charitable clauses
- Valuation and disclosure of assets.
This Service Includes
If you have a legitimate interest in a Will and are experiencing difficulties in navigating the law or handling disputes with other interested parties, our Estate Dispute lawyers can help you with:
- Expert legal advice on disputing or challenging a Will
- Obtaining a copy of the Will
- Taking your extensive instructions and obtaining relevant documents
- Filing a caveat with the Supreme Court to prevent the Will be admitted to probate
- Filing proceedings and preparing all supportive evidence
- Attending mediation of the dispute with a view to settlement of the dispute
- Appear at the hearing to represent you in the case
- Challenges to the validity of a Will
You need a lawyer with substantial experience in estate disputes. Call The Law Office of Conrad Curry for an obligation-free initial conference.
Frequently Asked Questions
What Makes an Estate Dispute Likely to Succeed in NSW?
If you are considering contesting a Will or making a family provision claim in New South Wales, an important question is whether your claim is likely to succeed.
While every case depends on its own facts, the Supreme Court of NSW applies established principles under the Succession Act 2006 (NSW) when determining family provision claims.
Understanding these factors can help you assess your prospects before taking legal action.
An estate dispute is generally more likely to succeed if you can show:
- financial need
- inadequate provision under the Will
- a meaningful relationship with the deceased
- limited competing claims from other beneficiaries
The Court will also consider the size of the estate, your personal circumstances, and whether it is appropriate to make further provision under the Succession Act 2006 (NSW).
How does the Court decide an estate dispute?
The Supreme Court of NSW generally applies a two-stage assessment.
- Was adequate provision made?
The Court considers whether the Will, or intestacy, made adequate provision for your:
- maintenance
- education
- advancement in life
The issue is not whether the Will was simply “fair”, but whether proper provision was made in your circumstances.
- Should further provision be ordered?
If adequate provision was not made, the Court then determines:
- whether it is appropriate to intervene, and
- what additional provision, if any, should be awarded
The Court assesses all relevant circumstances before making orders.
What is “adequate provision”?
Adequate provision refers to whether the nature or amount of provision is adequate for your maintenance, education, or advancement in life.
The Court may consider:
- your financial position
- your age and health
- your relationship with the deceased
- competing claims from other beneficiaries
- the size of the estate
Whether provision is “adequate” depends on the facts of each case.
How important is financial need in a family provision claim?
Financial need is often one of the most important factors in a family provision claim.
The Court may examine:
- your income, assets, and liabilities
- your ability to earn income
- your age and medical condition
- whether you support dependants
- your future financial needs
Claims are generally stronger where there is a demonstrated inability to adequately support yourself.
Does my relationship with the deceased affect my claim?
Yes. The nature and quality of your relationship with the deceased can significantly affect your claim.
Stronger claims often involve:
- a close and ongoing relationship
- regular contact
- emotional or financial support
- dependency or caregiving arrangements
However, estrangement does not automatically prevent a claim.
The Court may consider:
- the reasons for the estrangement
- whether the deceased contributed to the breakdown in the relationship
- whether there was any reconciliation
How does the size of the estate affect my claim?
The size and structure of the estate are critical considerations.
Larger estates
Larger estates generally provide greater flexibility for the Court to make additional provision orders.
Smaller estates
Smaller estates may limit the Court’s ability to make provision, particularly where there is a surviving spouse or other beneficiaries with significant needs.
The Court may also consider:
- superannuation interests
- notional estate provisions
- assets held in trusts or companies
What are competing claims?
The Court must balance your claim against the interests of other eligible persons and beneficiaries.
Competing claims may include:
- a surviving spouse or de facto partner
- children
- dependants
- other family members with financial needs
A claim may be weaker where:
- another beneficiary has greater financial need
- the estate is insufficient to satisfy multiple claims
Do contributions to the deceased matter?
Yes. Contributions made to the deceased or their estate may strengthen a claim.
This may include contributions to:
- the deceased’s finances
- the acquisition or improvement of assets
- caregiving and support, particularly later in life
Non-financial contributions can also be persuasive.
Can I make a claim if I was left something in the Will?
Yes. You may still bring a family provision claim even if you received a benefit under the Will.
The Court will assess whether the provision made for you was adequate in light of your current and future needs.
A modest gift may not be sufficient where there is clear financial need.
Do promises or conduct matter?
The Court may also consider:
- promises or assurances made by the deceased
- your reasonable expectations of provision
- your conduct and its effect on the relationship
While conduct can be relevant, the Court focuses primarily on whether further provision is appropriate in the circumstances.
What factors may weaken an estate dispute claim?
A claim may be less likely to succeed where:
- you are financially secure and self-sufficient
- there was a lengthy estrangement without explanation
- you received substantial benefits during the deceased’s lifetime
- the estate is relatively small
- stronger competing claims exist
- there is evidence the deceased had valid reasons for their decisions
Does being an eligible person guarantee success?
No.
Being an “eligible person” under the Succession Act 2006 (NSW) only allows you to bring a claim.
You must still establish that:
- adequate provision was not made, and
- there is a proper basis for the Court to intervene
Not all family provision claims succeed.
What time limits apply?
Strict time limits apply in NSW.
Generally, a family provision claim must be commenced within 12 months from the date of death.
Failing to act within time may prevent you from bringing a claim unless the Court grants an extension.
Early legal advice is important.
What costs and risks should you consider?
Estate disputes can involve:
- significant legal costs
- uncertain outcomes
- emotional stress and family conflict
- lengthy litigation processes
Legal costs are often paid from the estate, but this is not guaranteed.
Obtaining early advice may help resolve disputes through negotiation or mediation before a final hearing becomes necessary.
What should you do if you are considering contesting a Will?
If you are considering a family provision claim:
- obtain legal advice as early as possible
- review the Will and available estate information
- gather evidence of your financial position
- document your relationship with the deceased
Early preparation can significantly affect the strength and management of your claim.
Does financial need matter in a family provision claim?
Yes. Financial need is often one of the most important considerations in determining whether additional provision should be made.
Can you contest a Will if you were left something?
Yes. A claim may still succeed if the provision made was inadequate in your circumstances.
Does estrangement prevent a claim?
Not necessarily. The Court will consider the reasons for the estrangement and the history of the relationship.
What if the estate is small?
Smaller estates can make claims more difficult because the Court must balance competing interests and limited assets.
Does being an eligible person guarantee success?
No. You must still establish that adequate provision was not made and that further provision is justified.
How can a lawyer assist with an estate dispute in NSW?
We advise clients throughout New South Wales on estate disputes and family provision claims.
Our team can assist with:
- assessing your prospects of success
- advising on legal strategy
- representing you in negotiations, mediation, or Court proceedings
- working toward a practical and commercially sensible resolution
We provide clear advice tailored to your circumstances and the nature of the estate.
