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
  • dependent grandchildren who have been a member of the same household as the deceased person at some point in time
  • 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.

Previous cases

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

Contested Wills:
  • 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
  • We have assisted clients with defending family provision claims brought by:
  • 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: 
  • Bringing an application for judicial advice on behalf of an executor regarding the proper construction of a gift in a Will and upholding 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
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
Sydney CBD Office

Suite 512, Level 5,
165-167 Phillip Street,
Sydney

Mosman Office

124 Avenue Road,
Mosman

Liability limited by a scheme approved under Professional Standards Legislation.
Legal practitioners employed by McIntyre Legal Pty Ltd are members of the scheme.

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