Contested Wills & Estates

Contested Probate

We assist clients with both contesting and defending Wills.

Some of the situations in which a deceased person’s Will can be contested include:

  • The Will is not the last Will of the deceased;
  • The testator lacked testamentary capacity at the time the Will was made;
  • The testator lacked knowledge and approval of the Will;
  • The Will is a forgery, was made under undue influence, or is fraudulent;
  • The Will is not duly executed (for example, was not signed by the deceased in the presence of two adult independent witnesses); or
  • The testator revoked the Will in his or her lifetime (for example, by destruction or a subsequent Will).

Family Provision

A family provision claim is an application made by a plaintiff against a deceased person’s estate where it is alleged that the plaintiff did not receive adequate provision for “the maintenance, education or advancement in life” of the plaintiff under the terms of the deceased’s Will or under the laws of intestacy.

Persons who are eligible to make a family provision claim against a deceased person’s estate include:

  • surviving spouses (including de facto spouses);
  • children;
  • former spouses;
  • dependent grandchildren who have been a member of the same household as the deceased at some time;
  • persons who are partly or wholly dependent on the deceased and who have been a member of the same household of the deceased at some time; and
  • persons living in a “close personal relationship” with the deceased.

We assist clients with both bringing and defending family provision claims.

Construction of Wills

Where there is doubt as to the meaning or operation of a Will, an application can be made to the Supreme Court of New South Wales for direction.

Reported cases

Some of the reported cases we have been involved in are:

  • Defending an application for probate of an informal testamentary document: The Estate of Drummond; Drummond v Drummond [2017] NSWSC 856
  • Construction of a gift in a Will and a judicial advice application on behalf of an executor to uphold her decision to pay the proceeds of an estate to the Garvan Institute of Medical Research: Elizabeth Joan Paulsen as executor of the estate of the late Miriam Lesley Jean Douglass v Northern Sydney Local Health District [2018] NSWSC 1473
  • Summary dismissal of a family provision claim brought by an estranged sibling: Comninos v Buckley; The Estate of Comninos [2019] NSWSC 968