In NSW, the executor named in the will is usually the one who defends it, though an administrator or an interested beneficiary can step in if needed. The immediate priority is stopping any grant of probate or asset distribution while you investigate the challenge, typically by lodging a probate caveat or filing an appearance in the Supreme Court of New South Wales. Get legal advice fast and preserve every original document you can find.
TL;DR:
- Most successful defenses are built early, focusing on retrieving solicitor’s notes, medical records, and witness statements before memories fade.
- Filing a probate caveat can pause asset distribution for up to six months, giving time to investigate and respond to challenges.
- Early legal advice and gathering comprehensive evidence, including expert reports if necessary, significantly improve the chances of a strong defense.
- Mediation is central in NSW contested wills, often settling disputes faster and at lower cost than full court hearings.
- Costs depend heavily on case complexity, with early settlement options generally being more affordable and risky claims potentially leading to adverse costs orders.
Table of Contents
- Who can defend a will in NSW
- Immediate steps to protect the estate and preserve evidence
- How contested proceedings usually proceed in the Supreme Court of NSW
- Common legal grounds and typical defences in will disputes
- Costs, timeframes and who may pay
- Practical checklist for executors defending a will
- Funding Your Legal Matter — No Win, No Fee
- What I’ve learned defending wills in NSW
- Talk to Simons George Legal about defending your case
- Sources
- FAQ
Who can defend a will in NSW
The executor named in the will holds the primary duty to defend it. That duty exists because the executor administers the estate according to the deceased’s wishes, and a successful challenge undermines that entire job. Where no executor is willing or able to act, the court can appoint an administrator, who then inherits the same defensive responsibility.
Interested persons, usually beneficiaries with something to lose if the will is overturned, can also apply to be joined in proceedings even when they aren’t formally appointed. This matters because executors sometimes want to stay neutral, particularly in family disputes, and a beneficiary willing to actively contest the challenge fills that gap.
Standing to defend generally comes down to one of three positions:
- Executor named in the will, with the primary legal duty to uphold it
- Administrator appointed by the court where no executor exists or is willing to act
- Interested person, typically a beneficiary, who can seek to be joined in the proceedings
If nobody with standing steps forward, the court can appoint someone to represent the estate’s interests, which slows everything down considerably.
Immediate steps to protect the estate and preserve evidence
Speed matters more than most executors realise. The Supreme Court of New South Wales notes that a caveat can pause a grant of probate for up to six months, giving you room to investigate before assets move anywhere.
- Lodge a probate caveat if a grant hasn’t been made yet. This blocks the registry from issuing probate while the dispute is sorted out, and it lapses automatically after six months unless renewed.
- Secure the estate’s assets. Contact banks to flag accounts, note any property at risk of unauthorised sale, and record exactly what exists and where.
- Gather contemporaneous records straight away: the solicitor’s file notes from when the will was made, medical records around that date, and contact details for every witness to the will’s execution.
- Respond to notices promptly and keep every communication with claimants measured and in writing. Avoid phone calls where nothing gets recorded.
Pro Tip: Ask the solicitor who drafted the will for their contemporaneous file notes before you do anything else. Notes made at the time the will was signed carry far more weight in court than any recollection assembled months later.
How contested proceedings usually proceed in the Supreme Court of NSW
Once a caveat is challenged or proceedings are filed, you become a defendant by filing an appearance in the Supreme Court of New South Wales. From there, the claimant files a statement of claim setting out exactly what’s being challenged and why, and you respond with a defence addressing each allegation.
The registry then sets directions for the matter, usually requiring:
- Exchange of affidavits from both sides setting out the factual evidence
- Expert reports where relevant, such as capacity assessments or handwriting analysis
- Disclosure of relevant documents, including the solicitor’s file and medical records
- A court-annexed mediation before any hearing date is fixed
Mediation sits at the centre of the NSW process, and for good reason. Most contested matters settle there rather than running to a full hearing, largely because the Supreme Court of NSW actively encourages early resolution and because an unsuccessful party can be ordered to pay the other side’s costs. That risk pushes both sides toward a negotiated outcome long before trial.
If mediation fails, the matter proceeds to a contested hearing. Possible outcomes range from the court upholding the will exactly as written, to declaring it invalid (which usually reverts the estate to a prior will or intestacy rules), to ordering rectification of a clause, or making a family provision order under the Succession Act 2006 (NSW) that redistributes part of the estate without touching the will’s validity.
Common legal grounds and typical defences in will disputes
Claimants challenging a will’s validity generally rely on one of four grounds, and each demands a different kind of rebuttal.
- Lack of testamentary capacity — the claimant argues the deceased didn’t understand what they were signing. Defended with medical records from around the signing date and the solicitor’s own capacity assessment notes.
- Lack of knowledge and approval — the argument that the deceased didn’t properly understand or approve the will’s contents. Defended with witness affidavits confirming the will was read aloud or explained.
- Undue influence — a claim that someone pressured the deceased into particular terms. Defended with evidence of the deceased’s independent decision-making, ideally recorded by the drafting solicitor.
- Forgery or improper execution — technical defects in how the will was signed or witnessed. Defended with the attesting witnesses’ evidence and, occasionally, forensic document examination.
It’s worth separating these validity challenges from family provision claims, which don’t attack the will at all. A family provision claim under the Succession Act asks the court to redistribute part of a valid estate because an eligible person wasn’t adequately provided for. The legal test is entirely different: capacity and undue influence are irrelevant, and the court instead weighs the claimant’s financial need against the size of the estate and the deceased’s reasons for their decisions. The Supreme Court of NSW treats these as genuinely distinct pathways, and confusing the two wastes time and money for everyone involved.
Costs, timeframes and who may pay
Cost is usually the first question executors ask, and the honest answer is: it depends heavily on how far the matter goes. A dispute resolved through early negotiation might cost a fraction of what a contested hearing runs to, because mediation resolves most NSW matters well before trial.
Court filing fees are payable regardless of the outcome, and Practice Note SC EQ 7 sets thresholds for how the court manages proceedings and caps recoverable costs in some cases, particularly for smaller estates. Under section 99 of the Succession Act 2006 (NSW), the court has discretion to order costs paid from the estate, but this isn’t automatic. An unsuccessful claimant with a weak case can be ordered to pay the other side’s costs personally, which is exactly why early legal advice matters so much.
Court fees and disbursements are usually payable upfront regardless of the case outcome.
- Estate-funded costs are discretionary, not guaranteed, under the Succession Act
- Weak or speculative claims carry real risk of an adverse costs order
Practical checklist for executors defending a will
- Secure the original will and notify all relevant banks and financial institutions immediately.
- Freeze discretionary disbursements from the estate until the dispute is resolved.
- Collect the solicitor’s file, medical records, valuations, and witness contact details.
- Communicate with beneficiaries calmly, and keep a written record of every contact.
- Instruct a lawyer early, and consider expert reports (medical, forensic, or valuation) where the grounds warrant it.
A documentation checklist built for exactly this stage can help you avoid missing a critical piece of evidence in the first fortnight.
Funding Your Legal Matter — No Win, No Fee
Money shouldn’t be the reason a legitimate defence goes unfunded. Simons George Legal offers No Win No Fee arrangements for eligible contested estate matters, so executors and beneficiaries with a genuine claim aren’t blocked by upfront legal costs. Eligibility is assessed during a free initial consultation, during which the firm reviews your situation and confirms whether a conditional arrangement applies. Disbursements such as court filing fees and expert reports may still be payable along the way, and everything is set out clearly in a written costs agreement before you commit to anything. Book a free case assessment with Simons George Legal to find out where you stand.
No Win, No Fee arrangements are subject to case eligibility and a written costs agreement. Liability limited by a scheme approved under Professional Standards Legislation.
What I’ve learned defending wills in NSW
Most successful defences aren’t won in court. They’re won in the weeks after a caveat is lodged, when someone actually picks up the solicitor’s file notes and medical records before memories fade or documents go missing. The firms that treat mediation as the goal, not a fallback, tend to get their clients out of these disputes faster and with less damage to family relationships.
My practical advice to anyone drafting a will with a contentious bequest: write down your reasons at the time, in your own words, and give a copy to your solicitor. That single habit does more to prevent a successful challenge than almost anything else.
— George
Talk to Simons George Legal about defending your case
Simons George Legal is a Sydney based estates practice with a genuine focus on contested matters, not a general firm handling wills as a sideline. If you’re an executor facing a caveat, a claim, or a family member threatening to challenge a will, that specialisation matters: the firm’s inheritance dispute work sits alongside its everyday will drafting and probate practice, so the same team understands both how the will was made and how to defend it.
New clients get a complimentary 30 minute consultation, which is enough time to assess your situation properly and outline what a defence would actually involve, including whether a No Win, No Fee arrangement applies. If a translated document or a will drafted overseas is part of your evidence, a NAATI certified translation may also be required before it’s admissible. Whether you’re an executor who just received a caveat notice or a beneficiary weighing up whether to get involved, the next step is the same: book a consultation with Simons George Legal’s wills and estates team and find out exactly where your case stands.
This article is general information, not a substitute for advice from a qualified lawyer. Consult a qualified legal professional about your own circumstances before acting on anything here.
Sources
- Contested proceedings | Supreme Court of New South Wales
- Succession Act 2006 No 80
- Who pays court costs when a will is contested? | Gerard Malouf & Partners
FAQ
How much does it cost to contest a will in NSW?
Costs vary widely depending on complexity, but early settlement through negotiation or mediation is typically far cheaper than running the matter to a contested hearing, and court filing fees apply regardless of the outcome.
Is it worth contesting a will?
It depends on the strength of your grounds and the size of the estate; weak or speculative claims risk an adverse costs order, so a proper assessment of the evidence before filing is essential.
What are the grounds for contesting a will in NSW?
The main grounds are lack of testamentary capacity, lack of knowledge and approval, undue influence, and forgery or improper execution, each requiring different supporting evidence as set out under the Succession Act 2006 (NSW).
Is there a way to prevent someone from contesting a will in Australia?
No approach guarantees prevention, but documenting the reasons for contentious decisions at the time the will is made, alongside solicitor notes and a capacity assessment, makes a later challenge significantly harder to succeed.
Who normally defends a contested will in NSW?
The executor named in the will usually defends it, though an administrator or an interested beneficiary can act if the executor is unwilling or unable, as outlined by the Supreme Court of New South Wales.