22nd September, 2025
It’s not uncommon for Wills to be contested, particularly when someone feels they’ve been left out or treated unfairly. In New South Wales, the Succession Act 2006 (NSW) gives certain people the right to make a Family Provision Claim. If you’re an executor or beneficiary, knowing how to defend a Will is essential.
What is a Family Provision Claim?
A Family Provision Claim allows an eligible person to ask the Court for a larger or different share of the estate. Common claimants include spouses, de facto partners, children, and sometimes dependants. If the Court agrees the person wasn’t adequately provided for, the Will may be changed.
However, not all claims are successful. Many factors are considered, including:
- the claimant’s relationship with the deceased
- their financial needs
- the size of the estate
- the needs of other beneficiaries
Can a Will Be Defended?
Yes, a Will can absolutely be defended. Executors or beneficiaries have the right to argue that the Will is valid, fair, and accurately reflects the deceased’s intentions. This is especially important if the Will was carefully drafted with legal advice, as it strengthens the case against any challenge — regardless of the estate’s size.
What Steps Can You Take to Defend a Will?
Defending a Will requires careful preparation, a sound legal strategy, and professional advice. Here are the key steps:
- Seek Legal Advice Early
Don’t wait for a dispute to escalate. An experienced solicitor can assess the strength of any claim and explain your legal options. Early advice can often lead to faster, more cost-effective outcomes. - Gather Supporting Evidence
Collect documents and records that support the validity of the Will, including:
- The original Will
- Financial and estate planning documents
- Letters, notes, or emails that show the deceased’s intentions
- Medical records (especially if the deceased’s mental capacity is in question)
This evidence can be crucial in both mediation and court proceedings.
- Have the Claim Assessed by Your Solicitor
If someone challenges the Will, your solicitor will examine whether they’re legally eligible to make a claim — such as a spouse, child, or financial dependent — and whether the claim has merit. One key factor the court considers is the claimant’s financial circumstances. If the person is in genuine need or was financially dependent on the deceased, the court may decide they should receive more from the estate. Your solicitor will assess these risks and help you understand the strength of the claim. - Attempt Mediation
Most disputes are referred to mediation before going to court. Mediation offers a private, less adversarial way to resolve the matter — it can often save time, money, and family relationships. - Prepare for Court
If mediation doesn’t lead to a resolution, the dispute may go before a judge. Your solicitor will manage the case, present the necessary evidence, and argue that the Will is valid and reflects the deceased’s true intentions.
Important Considerations for Executors
Being an executor carries serious responsibilities. If a claim is made, you must not distribute the estate until it’s resolved. Failing to do so can result in personal liability. Even if the claim is unsuccessful, legal costs might still come out of the estate.
Executors should always:
- remain neutral during disputes
- keep thorough records
- consult legal professionals before taking any action
Time Limits Apply
Family Provision claims must usually be filed within 12 months of the deceased’s death. It is important to respond quickly if you’re notified of one as delays can limit your options to defend the Will effectively.
Need Help Defending a Will?
Defending a Will can be stressful, emotional, and legally complex. Whether you’re an executor protecting the estate or a beneficiary safeguarding your inheritance, our team can help. We have years of experience in estate planning and can guide you through each step of the process.
If you would like to defend a Will in Lismore, Bangalow, Ballina, Byron Bay, or anywhere else in the Northern Rivers, reach out to Castrikum Adams Legal for practical advice and expert support. Let us help you uphold your loved one’s wishes and bring clarity during a difficult time.
If you found this blog helpful, please check out our other blogs on Estate Planning.
The content of this Blog does not constitute legal advice, is not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice or other professional advice in relation to any specific matters you or your organisation may have.