Estate Litigation

Estate Litigation in NSW

"Estate litigation" is the umbrella term for any legal dispute about a deceased person's estate. In New South Wales, these disputes are almost always heard in the Supreme Court of NSW (Equity Division) and they break down into three broad categories:

• Family provision claims — an eligible person seeking a greater share. Read more.
• Challenges to a Will's validity — arguing the Will itself shouldn't stand. Read more.
• Administration disputes — disagreements about how the estate is being run, or about the executor's conduct.

Estate disputes are rarely just about money. They surface long-running family tensions at the worst possible time. Our job is to give you a clear-eyed view of the legal merits, costs and likely outcome, and to resolve the matter — at mediation wherever possible, and in court when it's not.

Challenges to a Will's Validity

A Will can be set aside by the Supreme Court if it doesn't reflect the true intentions of the deceased. The most common grounds are:

Lack of testamentary capacity

The deceased didn't have the mental capacity to make a valid Will at the time of signing — often raised where dementia, severe illness or strong medication was involved. The leading test comes from Banks v Goodfellow and is still applied by NSW courts today.

Undue influence

Someone exerted pressure or coercion on the deceased to change the Will in their favour. A common example is an elderly person leaving everything to a paid carer or a single child who controlled access to them, while excluding the rest of the family.

Fraud or forgery

The Will, or a signature on it, isn't genuine — or the document was prepared without the deceased's authority. These cases often involve forensic handwriting analysis and detailed evidence of the surrounding circumstances.

Lack of knowledge and approval

Used where there are "suspicious circumstances" — for example, the principal beneficiary prepared the Will, or read it to a deceased who couldn't read it themselves.

Administration & Executor Disputes

Even where the Will isn't in doubt, disputes regularly arise about how the estate is being run. We act for beneficiaries challenging executors and for executors defending their conduct. Typical issues:

• Removal of an executor for mismanagement, conflict of interest or failure to act
• Demanding an accounting — forcing the executor to disclose what assets exist and how they're being administered
• Construction suits — asking the Court to interpret an ambiguous or contradictory clause
• Rectification — fixing a clerical error or a clause that doesn't reflect the deceased's instructions
• Forfeiture rule claims — where a beneficiary may be implicated in the deceased's death
• Disputes between co-executors who can't agree on how to administer the estate

Who Pays the Legal Costs?

Costs in estate litigation aren't always paid by the loser. The Court takes a discretionary approach and orders can include:

• Costs paid out of the estate — common where the dispute was caused by the deceased's own ambiguous Will or where both sides had reasonable arguments
• "Loser pays" orders — increasingly common where a claim was unreasonable or pursued too aggressively
• No order as to costs — each side pays their own, typically after a successful mediation

We discuss costs and likely cost outcomes at the very first meeting, and offer fixed fees wherever possible for clearly-scoped stages of work.

Common Questions About Estate Litigation

What's the time limit to contest an estate in NSW?

For family provision claims, you must generally file within 12 months of the date of death (s58 Succession Act 2006 NSW). For challenges to a Will's validity or to a Grant of Probate, separate limitation periods apply. The Court can extend time in limited circumstances, but the earlier you act, the stronger your position.

Do estate disputes always go to court?

No — the vast majority settle at mediation, which the NSW Supreme Court actively encourages. Most cases that do progress reach a hearing within 12 to 18 months.

Who pays the legal costs in an estate dispute?

It depends. Costs may be ordered out of the estate, against the losing party, or each side may pay their own. The Supreme Court has wide discretion and considers the reasonableness of each party's conduct. We always discuss likely cost outcomes at the outset.

What's the difference between contesting and challenging a Will?

"Contesting" usually refers to a family provision claim — accepting the Will is valid but asking for a greater share. "Challenging" usually refers to attacking the validity of the Will itself — for example on grounds of lack of capacity, undue influence or fraud. More on challenging a Will.

Can an executor be removed in NSW?

Yes. The Supreme Court can remove an executor under s70 of the Probate and Administration Act 1898 where they have failed in their duties, have a conflict of interest, or where their continued role would prejudice the proper administration of the estate.

How long does estate litigation take?

Most matters resolve at mediation within 12 to 18 months of filing. Complex cases that proceed to a full hearing may take 2 years or more. Urgent applications, such as injunctions to stop the dispersal of estate assets, can be heard within days.

Can I act for myself in estate litigation?

You can self-represent in the Supreme Court, but estate litigation is procedurally complex and the cost consequences of getting it wrong can be severe. We strongly recommend at least an initial consultation before deciding whether to litigate on your own.