Protecting Your Estate from being Contested in NSW

Planning your estate is not only about deciding who receives your assets. It is also about reducing the risk of disputes after your death and ensuring your wishes are carried out as intended.

In New South Wales, eligible family members and dependants may be able to challenge a Will by making a Family Provision Claim under the Succession Act 2006 (NSW). While no estate plan can completely prevent a claim, there are practical legal strategies that may help reduce the likelihood of a successful challenge.

Strategies such as properly drafted Wills, testamentary trusts, regular estate plan reviews and clear documentation of your intentions can strengthen your estate planning position and provide greater certainty for your loved ones. At Orman Solicitors, we assist individuals and families across Sydney and Regional NSW with estate planning, testamentary trusts and contested estate matters.

Who Can Contest a Will in NSW?

Under NSW law, certain people may be eligible to make a Family Provision Claim if they believe they have been unfairly left out of a Will or inadequately provided for.

Eligible persons may include:

• A spouse or de facto partner
• A former spouse or former de facto partner
• Children, including adopted children and, in some cases, stepchildren
• A person who was financially dependent on the deceased
• A dependent grandchild
• A person living in the same household and receiving support
• A person with a close personal relationship with the deceased

In most cases, an application to contest a Will in NSW must be made within 12 months from the date of death. When considering these claims, the Court may assess:

• The applicant’s financial circumstances
• The nature of their relationship with the deceased
• The size and nature of the estate
• Competing claims from other beneficiaries
• Any obligations the deceased may have had toward the applicant

Understanding who may be eligible to contest a Will is an important first step in effective estate planning.

How To Reduce the Risk of Your Will Being Contested

Create a Clear and Comprehensive Estate Plan

A legally drafted Will is the foundation of protecting your estate. It helps minimise uncertainty, reduce the likelihood of disputes and ensure your intentions are clearly documented.

Depending on your circumstances, it may be appropriate to:

• Clearly explain how assets are to be distributed
• Document reasons for unequal distributions
• Record concerns regarding family dynamics
• Ensure legal formalities are properly followed

In some situations, preparing a written statement explaining your decisions may assist in supporting the intentions behind your Will.

Obtaining advice from experienced estate planning solicitors can help ensure your documents are legally effective and tailored to your circumstances. Seeking advice from experienced estate planning solicitors ensures your documents are legally effective and tailored to your personal and financial circumstances.

Consider a Testamentary Trust

A testamentary trust is a trust established within your Will that only takes effect after your death. Testamentary trusts are commonly used in estate planning because they may provide greater flexibility, asset protection and control over how inheritances are managed.

Asset Protection

Assets held within a testamentary trust may offer additional protection from risks affecting beneficiaries, including:

• Bankruptcy
• Relationship breakdowns
• Creditor claims

Greater Control Over Distribution

A testamentary trust allows you to set conditions regarding how and when beneficiaries receive their inheritance. This can be particularly beneficial where beneficiaries are:

• Young children
• Financially vulnerable
• Experiencing relationship difficulties
• Managing significant debts

Potential Tax Benefits

In some cases, testamentary trusts may also provide taxation advantages for beneficiaries, particularly when income is distributed to minor children. Whether a testamentary trust is appropriate depends on your goals, family dynamics and asset structure.

Providing a Modest Inheritance May Reduce Risk

Where there is concern that a family member may contest the estate, some people choose to leave that person a modest provision rather than excluding them entirely.

While this approach does not prevent a Family Provision Claim, it may reduce the likelihood of litigation in some circumstances by demonstrating that the individual was considered during the estate planning process.

The appropriateness of this strategy depends on the size of the estate, the relationship between family members and the overall circumstances involved. This strategy should be carefully considered with legal advice.

Regularly Update Your Will

Life circumstances change, and so should your Will. An outdated Will can increase the risk of disputes and unintended outcomes. Your estate plan should be reviewed regularly, particularly following significant life events such as:

• Marriage, separation or divorce
• Birth of children or grandchildren
• Significant changes in financial circumstances
• Buying or selling major assets
• Death of a beneficiary or executor

Regular reviews help ensure your Will continues to reflect your wishes and complies with current NSW legal requirements.

The Importance of Tailored Legal Advice

Every family situation is different. Estate planning strategies that work for one person may not be appropriate for another.

Obtaining tailored legal advice can help you:

• Protect your assets
• Reduce the risk of disputes
• Ensure your wishes are properly documented
• Provide clarity for your loved ones

At Orman Solicitors, our team assists clients across Sydney and Regional NSW with Wills, estate planning and contested estate matters. Our team provides practical, personalised guidance to help you protect your legacy.