Can You Contest a Will After Probate Has Been Granted in NSW?

Can a will be contested after probate?

Yes. In New South Wales, you may still be able to contest a will after probate has been granted.

A grant of probate does not prevent a family provision claim from being commenced. Probate confirms that the will has been accepted by the Court as the deceased’s last valid will and that the executor has authority to administer the estate. It does not, by itself, decide whether the will made adequate provision for an eligible person.

In NSW, a family provision claim may be commenced whether or not probate or letters of administration has been granted.

Probate does not stop a family provision claim

Probate and family provision claims deal with different issues.

Probate is concerned with whether the will should be recognised by the Court and whether the executor has authority to deal with the estate.

A family provision claim is different. It involves an eligible person saying that, even if the will is valid, the deceased did not make adequate provision for their proper maintenance, education or advancement in life.

This means a person can accept that the will is valid, but still say that the distribution under the will is inadequate.

For example, a child may accept that their parent’s will was properly signed and validly made, but still bring a claim because they were left nothing, or because the amount left to them was inadequate.

What does probate mean?

Probate is a formal grant made by the Supreme Court of NSW.

It confirms that:

• the deceased’s will has been recognised by the Court;
• the executor named in the will is authorised to administer the estate;
• the executor can collect estate assets;
• the executor can pay estate debts; and
• the executor can distribute the estate according to the will, subject to any claims or legal obligations.

After probate is granted, the original will and supporting documents remain with the Court.

Probate is important for estate administration, but it does not necessarily mean that the estate is immune from a family provision claim.

What does “contesting a will” mean?

The phrase “contesting a will” is often used broadly. It can refer to different types of estate disputes.

In many cases, contesting a will means making a Family Provision Claim. This is where an eligible person says they have not received adequate provision from the estate.

This is different from challenging the validity of the will.

A challenge to the validity of a will may involve arguments such as:

• the deceased lacked testamentary capacity;
• the deceased did not know and approve of the contents of the will;
• the will was affected by undue influence;
• the will was forged or fraudulent;
• there were suspicious circumstances; or
• the will was not properly signed or witnessed.

A family provision claim does not necessarily challenge the validity of the will. Instead, it asks the Court to alter the distribution of the estate because adequate provision was not made for an eligible person.

The 12-month time limit in NSW

In NSW, a family provision application must generally be made within 12 months from the date of death.

This is an important point. The time limit does not usually run from the date probate is granted. It runs from the date of death.

Section 58 of the Succession Act 2006 (NSW) provides that an application for a family provision order must be made not later than 12 months after the date of death, unless the Court otherwise orders on sufficient cause being shown, or the parties consent to the application being made out of time.

This means a person should not wait for probate before getting advice. If you believe you may have a claim, you should act promptly.

What if probate was granted within the 12-month period?

If probate has been granted but the 12-month period has not expired, you may still be within time to commence a family provision claim.

For example, if the deceased died six months ago and probate has just been granted, an eligible person may still be able to file a claim before the 12-month deadline.

In that situation, the main issue is usually not probate itself, but whether the claim is filed in time and whether the estate has been distributed.

What if probate was granted and the 12-month period has expired?

If the 12-month period has expired, the position becomes more difficult.

You may still be able to apply, but you would usually need either:

• the consent of the parties to bring the application out of time; or
• an order from the Court allowing the application to proceed out of time (which will be determined at the final hearing).

The Court must be satisfied that there is sufficient cause to allow the late application. This is not automatic.

The Court may consider matters such as:

• the length of the delay;
• the reason for the delay;
• whether the applicant knew about the death;
• whether the applicant knew about the will;
• whether the applicant knew about their rights;
• whether the estate has been distributed;
• whether allowing the claim would prejudice beneficiaries;
• the strength of the proposed claim; and
• whether there were negotiations or other circumstances explaining the delay.

The longer the delay, and the more the estate has been administered or distributed, the harder it may be to obtain an extension.

Has the estate already been distributed?

This is often the most important practical question.

Probate itself does not necessarily prevent a claim. However, if the executor has already distributed the estate to the beneficiaries, the claim can become more complicated.

If the estate has not yet been distributed, there may still be estate assets available to satisfy a family provision order.

If the estate has already been distributed, the applicant may need to consider whether there are remedies available against beneficiaries who received estate assets, or whether any notional estate arguments are available.

This is why urgent action is often required. A person who may have a claim should obtain advice before the estate is distributed.

Can you stop the executor from distributing the estate?

In some circumstances, a potential claimant may put the executor on notice of a family provision claim.

This can be important. If the executor is aware that a claim is likely, they may delay distribution until the position is clarified.

However, simply telling the executor you are unhappy with the will is not the same as filing a Court application. If the time limit is approaching, it is important to obtain legal advice about whether proceedings should be commenced.

In urgent cases, it may be necessary to seek Court orders to prevent distribution or preserve estate assets.

What if the executor distributes the estate too early?

If an executor distributes an estate despite knowing of a potential family provision claim, there may be consequences. However, whether the executor is personally exposed will depend on the circumstances.

Executors commonly wait before making final distribution, particularly when eligible persons are contemplating making a claim. They may also seek releases, indemnities or Court directions in appropriate cases.

From a claimant’s perspective, the safest course is not to assume the executor will wait. If you may have a claim, get advice early so steps can be taken to minimise the likelihood that the estate will be distributed.

Who can contest a will after probate?

Only an eligible person can bring a family provision claim.

In NSW, eligible persons include:

• the deceased’s spouse;
• the deceased’s de facto partner;
• a child of the deceased;
• a former spouse;
• certain dependants who were members of the deceased’s household;
• certain grandchildren who were dependent on the deceased; and
• a person who was living in a close personal relationship with the deceased at the time of death.

Eligibility is only the first step. The applicant must still show that adequate provision was not made for them.

What does the Court consider?

In a family provision claim, the Court may consider a broad range of factors under section 60 of the Succession Act 2006 (NSW). These include the relationship between the applicant and the deceased, the size and nature of the estate, the financial resources and needs of the applicant and beneficiaries, any disability, contributions made by the applicant, and the character and conduct of the applicant.

The Court may consider:

• the applicant’s financial position;
• the applicant’s present and future needs;
• the applicant’s age and health;
• the size of the estate;
• the terms of the will;
• the relationship between the applicant and the deceased;
• whether there was estrangement;
• any contributions made by the applicant;
• any provision made during the deceased’s lifetime;
• the needs of other beneficiaries;
• whether there are other claims on the estate; and
• any relevant conduct.

The Court is not simply deciding whether the will was fair. The question is whether adequate provision was made for the applicant’s proper maintenance, education or advancement in life.

Can probate be challenged separately?

Yes. In some cases, a person may want to challenge the grant of probate itself.

This is different from a family provision claim.

For example, a person may argue that:

• the will admitted to probate was not the last valid will;
• the deceased lacked capacity;
• there was undue influence;
• the will was forged;
• the executor should not have obtained probate; or
• probate was granted on an incorrect basis.

These claims are usually more complex than a family provision claim and require different evidence. If probate has already been granted and you believe the will is invalid, urgent advice should be obtained.

Can you make a family provision claim before probate?

Yes. It is not necessary to wait for probate before filing a family provision claim.

In some matters, a claim is commenced before probate is granted, particularly where the time limit is approaching or there is concern about estate distribution.

What if you only found out about the will after probate?

Sometimes a person does not know they have been left out of a will until after probate is granted.

This can happen where:

• family members did not disclose the will;
• the executor did not communicate with the person;
• the applicant was estranged from the deceased;
• the applicant lived overseas or interstate;
• the applicant did not know the deceased had died; or
• the applicant only discovered the terms of the will after searching probate records.

If the 12-month time limit has not expired, the applicant may still be able to commence a claim.

If the time limit has expired, the applicant may need to explain why they did not apply earlier and seek an extension of time.

Can you get a copy of the will after probate?

Yes. After probate is granted, the will and probate documents generally become part of the Court record.

A person may be able to obtain copies of probate documents from the Supreme Court of NSW.

Obtaining a copy of the will can be an important first step. It allows you to see:

• who the executor is;
• who the beneficiaries are;
• what you were left;
• whether there are any statements about your exclusion;
• whether there are trusts or conditions; and
• whether there may be issues about the validity of the will.

What if the executor refuses to provide information?

An executor may not be required to provide every document immediately, but a person considering a family provision claim will often need information about the estate.

This may include:

• the will;
• an inventory of property;
• details of estate assets and liabilities;
• information about property sales;
• superannuation information;
• details of distributions; and
• whether any estate funds remain available.

If the executor refuses to provide information, legal steps may be available. The appropriate step will depend on whether probate has been granted, whether proceedings have been commenced, and what information is being sought.

What are the risks of waiting until after probate?

Waiting can create several risks.

First, the 12-month limitation period may expire.

Secondly, the estate may be distributed.

Thirdly, beneficiaries may spend or deal with estate assets.

Fourthly, evidence may become harder to obtain.

Fifthly, the executor may assume that no claim is being made.

Finally, delay can affect the Court’s view of whether an out-of-time application should be allowed.

For these reasons, a potential claimant should not wait until probate is granted before obtaining advice.

Does mediation still occur after probate?

Yes. Many family provision claims are resolved by negotiation or mediation after probate has been granted.

In NSW, family provision proceedings are commonly referred to mediation. The Supreme Court’s Equity Practice Note for probate and family provision matters provides procedural guidance for family provision applications, including how proceedings are listed and managed.

Mediation can occur before or after probate. The key issue is whether there are estate assets available, whether the parties have enough information to assess the claim, and whether the dispute can be resolved commercially.

What outcomes are possible?

If a family provision claim succeeds after probate, the Court may make orders altering the distribution of the estate.

Possible outcomes may include:

• a lump sum payment;
• a larger share of the estate;
• transfer of property;
• a right to reside in property;
• provision from notional estate;
• payment of legal costs; or
• another order appropriate to the circumstances.

The outcome depends on the applicant’s needs, the estate size, the beneficiaries’ circumstances and the evidence.

What should you do if probate has already been granted?

If probate has already been granted and you are considering contesting the will, you should act quickly.

Practical steps may include:

1. Obtain a copy of the will and probate documents.

   This helps confirm the executor, beneficiaries and estate details.

2. Check the date of death.

   The 12-month time limit runs from the date of death, not the date probate was granted.

3. Find out whether the estate has been distributed.

   This affects urgency and strategy.

4. Assess eligibility.

   You must fall within one of the eligible person categories.

5. Gather financial evidence.

   Your income, expenses, assets, liabilities, health and housing needs may be important.

6. Put the executor on notice if appropriate.

   This may help prevent premature distribution.

7. Get legal advice promptly.

   Delay can prejudice your position.

Conclusion

You can contest a will after probate has been granted in NSW, but you should act quickly.

Probate does not necessarily prevent a family provision claim. A grant of probate gives the executor authority to administer the estate, but it does not determine whether the deceased made adequate provision for an eligible person.

The key issues are usually whether you are eligible, whether you are within the 12-month time limit, whether the estate has been distributed, and whether the evidence supports a claim for further provision.

If probate has already been granted, delay can make the claim more difficult. You should obtain advice as soon as possible so that your rights can be assessed and any necessary steps can be taken before the estate is distributed.