When a person dies and they have left a will, that person’s estate will be distributed according to the instructions in the legally binding document, and there would be an appointed executor, whose job it is to ensure that the deceased person’s wishes are carried out. In many cases, a family member feels that they have been unfairly treated, and whether their name is actually in the will or not, it is possible to contest the will.

Seek Experienced Legal Advice

Should a person wish to contest a will, they should first seek out an experienced probate lawyer, who can advise on the correct procedure. It is likely that the will would be administered by a public trustee in NSW, as there is an organisation called NSW Trustee & Guardian, which exists to help people create a will and also to administer existing wills. In cases where a person has died without leaving a will, the courts would likely appoint NSW Trustee & Guardian, who can also help if there is a will but the appointed executor is not able to carry out their duties.

No Win No Fee

Many probate law firms will take on a claim to contest a will on a no win – no fee basis, which means the person making the claim can be sure not to be left with a large legal bill after having been unsuccessful with their claim. If the probate lawyer thinks you have a strong claim, they would likely offer to represent you and any legal fees would only be payable once the claim is successful.

Complex Legal Procedures

Contesting a will is a complex process and one should never go ahead with a claim without first talking to an experienced probate lawyer, who can review your claim and would be able to give you their professional opinion regarding your chances of success. There are a number of reasons why a person might wish to contest a will, which would include claiming that the deceased was not of sound mind at the time the will was made, or that the details of the will have been misinterpreted, and it is only by discussing the circumstances surrounding the claim with an experienced probate lawyer that the claimant can make an informed decision.

Who Can Contest a Will?

To qualify for a will contestation, a person must be one of the following:

  • The wife or husband of the deceased (at time of death).
  • A person who was living with the deceased in a de facto relationship (at time of death).
  • A child of the deceased person.
  • A former spouse of the deceased.
  • A person who was wholly – or partially – dependant on the deceased.
  • A dependant grandchild of the deceased.

If you fall into one of the above situations, it is legally possible for you to contest the will, and providing you seek out expert legal advice, the process can be handled by your lawyer.