• Last Will & Testament of Diana, Princess of Wales

    I DIANA PRINCESS OF WALES of Kensington Palace London W8 HEREBY REVOKE all former Wills and testamentary dispositions made by me AND DECLARE this to be my last Will which I make this First day Of June One thousand nine hundred and ninety three 1 I APPOINT my mother THE HONOURABLE MRS FRANCES RUTH SHAND KYDD ...


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  • General Principles of Wills

    A will is a written document in which you state how you want your property distributed after you die. A person who makes a will is called a "testator". It also allows you to nominate an executor, who is the person responsible for making sure your wishes are met. What Happens If I Die Without A Will? If you di...


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  • Elements of a Testamentary Trust

    Testamentary trusts are created in a will by a testator who bequeaths his or her property for the benefit of others called the beneficiaries.  Testamentary trusts can either be express or non-express, but if a will is properly created, a testator’s intentions can be inferred from the terms of the will. By creati...


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Contact Us

Suite 309 – 310, Level 3
13A Montgomery Street

Ground Floor
54 Martin Place

Email: solicitors@gmhlegal.com
Phone: (02) 9587 0458
Facsimile: (02) 9587 2936


Have you been left out of a will?

Whatever your problem we invite you to call for an immediate FREE assessment of your rights and explanation of the process.

Even though the law recognises a person’s right to choose who will inherit his or her property, there are often very good reasons why a person should be contesting a Will.

No matter what your particular Will dispute issue is, our experienced team of Wills, Probate and Estate Litigation lawyers will work with you to assess the relevant issues and advise you frankly of the legal options and avenues available to resolve your circumstances.

To increase your chance of success when contesting a Will in NSW it helps to have a qualified and experienced team behind you who understand the intricacies of contested Will law. Because there are numerous ways to contest a Will and every Will contest case is unique, you will require a tailored strategy to ensure a successful outcome can be achieved.

GMH Legal Lawyers has a dedicated team who have helped our clients in New South Wales to achieve favourable outcomes in contested Will cases and Will defence cases. We have the skills needed to get the job done and pride ourselves on our ability to guarantee results and deliver on that promise.

We understand that contesting a Will can be very stressful and that the cases are always sensitive and personal by nature. In respect of this we go to great lengths to ensure the Will contest process is as stress free and smooth as possible. Whether you are contesting a Will or defending it, rest assured our team of contested Will lawyers will do everything we possibly can to achieve a favourable outcome for you.

While our team does specialise in contesting Wills in NSW, we are also highly experienced in defending Wills. We understand both sides of the law in respect to contesting and defending Wills, and have an unbeaten track record in delivering favourable outcomes to clients in both areas across New South Wales. If you want to put up a solid Will defence case please call a member of our team today to discuss your situation in more detail. We’ll help you defend what is rightfully yours!


A will contest is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator. A will may be challenged in its entirety or only in part.

Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud.

In addition, wills can be also be contested on the ground that the testator failed to make adequate provisions for dependants. This is called a ‘Family Provision claim’.


Please note that you only have 12 months from the date of death of the testator to apply to the Court to challenge a will.

If you need an extension, you will need to ask the Court as consent of the parties is not sufficient.


To determine whether a will is valid, the Court will look at the following questions:

  • Is it the last will made by the deceased?
  • Was it executed in accordance with the formal requirements of the Act?
  • Did the will-maker have the testamentary capacity to make the will?
  • Was the will altered after it was originally signed?
  • Was there any undue influence involved when the will was drawn up?


Anyone over the age of 18 can make a will, however people who make will must have testamentary capacity. This means they must be of sound mind, memory and understanding at the time of making the will.

A person is regarded as having the required capacity if they:

  • Understand the nature and the effect of a will
  • Know the nature and extent of their property
  • Comprehend and appreciate the claims to which they ought to give effect
  • Are not affected delusions that influence the disposal of their assets at the time they are making their will.

Sick or elderly individuals

A will can be challenged on the grounds that the will-maker did not have sufficient capacity.

This arises most frequently when the will-maker is or extremely old when they make or change their will. If possible, you should make your will while you are still in good health. At GMH Legal we recommend that you do not put it off until you are very old or sick.

If the issue of capacity is likely to arise, you should obtain evidence of your testamentary capacity in the form of a medical certificate from your doctor or health worker.

Individuals with intellectual disability

Testamentary capacity may also be an issue for people with intellectual disability. While evidence of capacity is not legal required, it may be desirable in some cases where the disability is severe or if there is a likelihood that the will could be challenged later on.

If it is clear that the person does not have the testamentary capacity to make a will, the Succession Act 2006 now provides for court authorised wills for those lacking testamentary capacity. Upon application, the Court may authorise that a will be made, altered or partially/fully revoked on behalf of a person lacking capacity either though immaturity or a particular incapacity.

The person on behalf whom the application is made must be alive at the time the order is made and, upon the execution of the will, the later must be deposited with the Registrar.

For more information, please refer to Legal Answer’s ‘Capacity to make a will’ section.


If a person who has assisted the will-maker to draw up a will also stands to gain a great deal from it, that person may have to prove to the Court that there was no trickery, pressure, force or even fear involved in the making of the will.

The Court will overturn a will on the ground of undue influence where it is satisfied the will-maker’s mind was coerced to such an extent that the resulting will was contrary to the will-maker’s real intentions.

The Court may be especially suspicious about undue influence if there has been obvious persuasion by the person who drew up the will, especially where that person would benefit from it.

It can be difficult to prove undue influence unless there were witnesses present when it happened.


The rationale of the Family provision claim, is to ensure that adequate provision is made for certain defined eligible persons, whether or not there was a will and whether or not the eligible person was mentioned in it.

Who can make a Family provision claim?

According to chapter 3 of the Succession Act 2006 (NSW), those eligible to apply include:

  • Wife or husband of the deceased person at the time of death
  • Person with whom the deceased person was living in a de facto relationship at the time of their death (including same sex partner)
  • A child of the deceased person
  • A former wife or husband of the deceased person
  • A person who was, at any particular time, wholly or partly dependent on the deceased person, and at any time a member of the same household as the deceased person
  • A grandchild who was at any particular time wholly or partly dependent on the deceased person
  • A person with whom the deceased person was living in a close personal relationship at the deceased person’s death

For more information on making Family provision claims, please refer to the ‘Family provision claim’ section of the GMH Legal website.


The Supreme Court of NSW interprets wills made or contested in NSW. The executor, or a party interested in the estate, may apply to the court to have it determine what the will-maker meant by the will. For example, a woman with two grandsons called George may have left something to ‘my grandson George’. Which one did she mean?

The common law power of a court to remedy a mistake in a will is severely limited, in contrast to the remedies available for matters involving living people. However, the ‘rectification’ power under section 27 of the Act does give the court the power to rectify a will if the way it is expressed fails to carry out the will-maker’s intentions. Section 32 allows limited evidence to be admitted (including evidence of the will-maker’s intentions) in a court hearing to have the true construction of a will determined if the language used in the will makes any part meaningless or ambiguous.

A new provision of the Act lists the categories of people who are now entitled to look at a will of a deceased person and be provided with a copy (at their cost). They include anyone named in the will, anyone named as a beneficiary in an earlier will, surviving spouse or de facto or issue of the deceased (section 54). Previously the executor could refuse to provide a copy of the will and it could only be obtained from the registry after probate was granted.


The Family Provision Act 1982 was repealed when the Succession Amendment (Family Provision) Bill 2008 commenced on 1 March 2009. The new provisions form chapter 3 of the Succession Act 2006 titled ‘Family Provision’. Although some of the terminology has changed, the rationale of the provisions remains the same which is to ensure that adequate provision is made for certain defined eligible persons, whether or not there was a will and whether or not the eligible person was mentioned in it.

Time limits
An application under the Act must be made within 12 months of the death (it was previously 18 months). The applicant can ask the court to have the period extended, but there can no longer be an extension of time by the consent of the parties. There is no longer an express power for the executor or administrator to seek to have the period shortened if circumstances warrant.

Who can apply?

Those eligible to apply are:

  • the wife or husband of the deceased person at time of death
  • a person with whom the deceased person was living in a de facto relationship at the time of their death (including same sex partners)
  • a child of the deceased person
  • a former wife or husband of the deceased person
  • a person who was, at any particular time, wholly or partly dependent on the deceased person, and at any time a member of the same household as the deceased person
  • a grandchild who was at any particular time wholly or partly dependent on the deceased person
  • a person with whom the deceased person was living in a close personal relationship at the deceased person’s death
  • A de facto relationship is now defined in section 21C of the Interpretation Act 1987 and includes same sex relationships, persons in registered relationships, including interstate relationships (Relationships Register Act 2010) and “a person in a de facto relationship” which is further defined as having a relationship as a couple living together who are not married to one another or related by family.

What is a de facto relationship?

A de facto relationship is defined as a relationship between two adults:

  • who live together as a couple, and
  • who are not married to one another or related by family.

In determining whether two people are in a de facto relationship, the court will take all the circumstances of the relationship into account, including such matters as:

  • the duration of the relationship (generally at least two years)
  • the nature and extent of the common residence
  • whether or not a sexual relationship exists
  • the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
  • the ownership, use and acquisition of property
  • the degree of mutual commitment to a shared life
  • the care and support of children
  • the performance of household duties
  • the reputation and public aspects of the relationship.
  • A close personal relationship is defined in the Succession Act as a close personal relationship (other than a marriage or a de facto relationship) between two adult persons whether or not related by family, who are living together, one of each of whom provides the other with domestic support and personal care. Specifically excluded is care provided for a fee or reward or on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).

If the court approves, a person can forego their rights under the family provision sections of the Succession Act 2006. This could happen on a property settlement following a divorce (section 95).

What is a domestic relationship?
Under the Property (Relationships) Act 1984, (section 5) a domestic relationship is defined as:

  • a de facto relationship (see below); and
  • a close personal relationship in which two adults live together, and one or both provides the other with domestic support and personal care. The relationship need not necessarily be sexual, and the people may or may not be related.

Paid carers, including those working for government or charitable organisations, are excluded from the definition of persons in a domestic relationship.
What the court takes into account

The court’s concern is that an eligible person’s maintenance, education or advancement in life be properly provided for. The relevant circumstances are those at the date of the hearing, not the date of death, and the court can consider community standards.

Section 60(2) of the Succession Act 2006 now sets out 16 matters which may be considered by the court in making its decision, including:

  • the character and conduct of the eligible person before and after the death
  • any contribution made by the eligible person towards the deceased’s property or welfare
  • anything else it considers important.
  • Interim orders

The court can make interim orders, which can later be confirmed, changed or withdrawn (section 62).

Notional estate orders

Sometimes a person deals or disposes of their assets while they are alive so that the assets do not form part of their estate or the assets may have been distributed from the estate (relevant property transactions). In certain limited circumstances, the court can make orders against the notional estate of the deceased (Succession Act 2006, Part 3.3).

Relevant property orders

Relevant property transactions must have occurred:

  • within three years before the person’s death, if it was done with the intention of denying an eligible person provision from the estate
  • within a year before the death, if at that time the person had a moral obligation to make proper provision for the eligible person
    on or after the person’s death.

Cost of the application

Generally the costs of a successful application for an order are paid out of the estate, though the court may order the payment of costs as it sees fit (Succession Act 2006, section 99). Section 99(2) also enables regulations to be made in respect of costs including the fixing of maximum costs for legal services which may be paid out of the estate or notional estate of the deceased.


Section 98 requires compulsory mediation before any hearing unless there are special reasons such as the risk of violence.


A person who has been left out of a Will, or unfairly provided for can make a claim for a larger share of a deceased person’s estate.
Common examples of this include:

  • Where the deceased has three children and leaves his or her estate to two children in equal shares with nothing left for the third child;
  • Where the deceased makes no provision for their de facto partner (including both heterosexual and same-sex relationships);
  • Where the deceased makes no provision or lesser provision for a step-child.

The type of relationship that an individual has with the deceased leading to a potential claim against the estate continues to expand from state to state.


A beneficiary of an earlier Will can challenge a more recent Will if the deceased person did not have the mental capacity to understand what he or she was signing.
Undue influence claim

A beneficiary of an earlier Will can challenge a more recent Will if the deceased person was ‘unduly influenced’ by another person to sign a Will that did not reflect that person’s true wishes.


A beneficiary under a will or trust can apply to the court to remove an executor or trustee who fails to administer a Will or trust properly. The beneficiary can also seek compensation if they suffer financial loss as a result of the executor or trustee’s wrongdoing.

Call the experienced team at GMH Legal to assist you in your matter. A free consultation with GMH Legal is an opportunity to gain deep insights into your legal situation and all of your options.

Why Choose GMH Legal?

  • Over 60 years of combined legal experience
  • Outstanding track record with a winning approach
  • First appointment is always free
  • Meet our team now.

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