Contested Wills & Estates

Contested Wills

We assist clients with both contesting and defending Wills.

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

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 destroying the original Will or making a subsequent Will).

Family Provision claims

A family provision claim is an application made against a deceased person’s estate by a person who claims that they did not receive “adequate provision” for their proper maintenance, education or advancement in life from the estate.

A family provision claim may be brought against a deceased person’s estate irrespective of whether they had a valid Will in place.

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
grandchildren who have been, at some point in time, wholly or partly dependent on the deceased person
persons who have been, at some point in time, wholly or partly dependent on the deceased person and a member of the same household as the deceased person
persons living in a “close personal relationship” with the deceased person at the time of their death

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 advice as to the proper construction of a Will. We can assist clients with such applications.

Recommended Leading Wills & Estates Litigation Law Firm in 2020, 2021 + 2022

Previous cases

Some of the cases we have previously advised clients in include:

Contested Wills:

Successfully obtaining Court orders that a document dictated and handwritten by doctors for a 92yo critically ill patient while she was lying on a surgical bed in hospital was not a valid Will of the deceased as she lacked the requisite mental capacity to make a Will and also lacked knowledge and approval of its contents: Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279
Advising a client in relation to a Will which she believed was forged
Advising a client in relation to a Will which he believed the deceased person did not have the testamentary capacity to make
Representing a client where the validity of a later Will was challenged, and a beneficiary was seeking probate of an earlier made Will
Defending an application for probate of an informal testamentary document: The Estate of Drummond; Drummond v Drummond [2017] NSWSC 856
Obtaining a grant of probate of an informal handwritten Will which was witnessed by one person only

Family provision claims:

Negotiating a large settlement for a family provision applicant where the executor claimed the estate was insolvent
Summary dismissal of a family provision claim brought by an estranged sibling: Comninos v Buckley; The Estate of Comninos [2019] NSWSC 968
We have assisted the following clients to bring family provision claims against a deceased person’s estate:

a de facto spouse of 38 years
a former spouse who had been subjected to significant financial and physical abuse by the deceased person
children for whom no provision was made under their deceased parent’s Will
a child whose father rejected prior to birth and refused to acknowledge paternity

a sibling of the deceased person
a person who alleged they were in a de facto relationship with the deceased
a spouse from whom the deceased had been separated for more than 20 years, but not divorced
a spouse who claimed they had not received adequate provision under the terms of the deceased person’s Will

Construction of a Will:

Preventing elder abuse:

Obtaining the removal of an attorney who was abusing their power by making substantial financial gifts from an incapacitated person’s assets to themselves and their family members
Obtaining orders for an incapacitated person to be returned to their home (from a nursing home) to receive 24-hour in-home care in accordance with their previously expressed wishes
Obtaining an injunction to prevent a person who claimed they were an incapacitated person’s “carer” from having any access to the vulnerable person or their assets