National Crime 
What is a probate dispute?
A probate dispute is any legal challenge concerning the validity of a will, the grant of probate or letters of administration, or the proper administration of a deceased estate. Unlike a family provision claim — which accepts the will is valid but seeks provision from the estate — a probate dispute challenges the will itself or the manner in which the estate is being administered.
Probate disputes in NSW may take several forms. A party may challenge the validity of a will on grounds such as lack of testamentary capacity, undue influence, fraud or forgery, suspicious circumstances, or want of knowledge and approval. Alternatively, a dispute may concern the conduct of the executor — whether through delay, self-dealing, failure to account, or conflict of interest. Disputes may also arise over the interpretation of a will's provisions, the identification of estate assets, or the proper beneficiaries under intestacy.
Validity Challenges
A party alleges the will is not valid because the testator lacked capacity, was subject to undue influence, did not know and approve the contents, or the will was procured by fraud or forgery. These challenges seek to set aside the impugned will so that an earlier valid will (or the intestacy rules) governs the estate.
Executor Disputes
A beneficiary or co-executor challenges the conduct of the executor — alleging delay, failure to account, misappropriation of assets, or conflict of interest. The Court may order the executor to account, pass over or remove the executor, or appoint an administrator pendente lite.
Caveats & Objections
Before a grant of probate is made, an interested person may lodge a caveat with the Supreme Court under Part 78 of the Supreme Court Rules. A caveat prevents the grant from being sealed without notice to the caveator, allowing time for a challenge to be investigated and commenced.
Solemn Form Proceedings
Where a will is challenged on substantive grounds, the propounder must prove the will in solemn form — that is, by a trial before a judge of the Equity Division. This is a more rigorous process than a common form grant and requires the propounder to establish the will's validity on evidence.
The NSW probate dispute framework
Probate disputes in NSW are governed primarily by the Succession Act 2006 (NSW) and the Probate and Administration Act 1898 (NSW). Procedural rules are set out in Part 78 of the Supreme Court Rules 1970 (NSW). The Supreme Court's Equity Division exercises both probate jurisdiction and general equitable jurisdiction, meaning it can grant both probate-specific relief (such as revocation of a grant) and equitable relief (such as declarations, accounts, and injunctions).
Key features of the NSW framework include: the six-month expectation for probate applications; the ability to lodge a caveat to prevent a grant being made without notice; the availability of solemn form proceedings for contested wills; the Court's power to pass over or remove an executor; and the intersection with NCAT for disputes involving enduring powers of attorney under the Powers of Attorney Act 2003 (NSW).
Common triggers for a probate dispute
- A late-life will that dramatically changes longstanding testamentary intentions
- A will prepared by or at the direction of a major beneficiary who isolated the testator from family
- Suspicious signatures, alterations, or irregularities in the will's execution
- An executor who delays probate, fails to communicate with beneficiaries, or appears to be self-dealing
- A power of attorney who transferred assets to themselves before death, affecting the estate available for distribution
- A will that cannot be found (raising questions of revocation or destruction)
- A later informal document that a party seeks to have admitted to probate under s 8 of the Succession Act 2006
- Concerns that the testator lacked capacity at the time the will was executed
Early action is critical in probate disputes
Once probate is granted and the estate is distributed, reversing the position becomes materially more difficult. If you have concerns about a will or the conduct of an executor, you should seek legal advice immediately — ideally before a grant is made. A caveat can be lodged to preserve the position while investigations are undertaken. Request urgent advice →
The probate dispute process in NSW
Identify the Issue
Determine the nature of the dispute: is it a validity challenge, an executor conduct issue, or both? Identify the evidence required and the applicable legal grounds.
Preserve the Position
If probate has not yet been granted, consider lodging a caveat. If assets are at risk, consider seeking freezing orders or other interlocutory relief.
Gather Evidence
Obtain medical records, solicitor files, witness statements, financial records, and the original will. The Briginshaw standard applies to serious allegations.
Commence Proceedings
File a statement of claim or summons in the Supreme Court Equity Division. The matter will be listed in the Probate List for case management.
Mediation or Trial
Many probate disputes resolve through court-ordered mediation. If necessary, the matter proceeds to a solemn form trial before a judge.
Need advice on an NSW probate dispute?
Whether you are concerned about the validity of a will, the conduct of an executor, or need to lodge a caveat to protect your interests — early legal advice under the Succession Act 2006 (NSW) is essential.
Frequently asked questions — NSW probate disputes
A probate dispute challenges the validity of a will or the administration of an estate. Grounds include lack of capacity, undue influence, fraud, and executor misconduct. A family provision claim (under Chapter 3 of the Succession Act 2006) accepts the will is valid but argues that adequate provision has not been made for an eligible person. The two types of claim have different legal tests, evidence requirements, and limitation periods. They can be brought together in some cases.
The duration varies significantly. A straightforward matter that resolves through negotiation or mediation may conclude within 3 to 6 months. A fully contested solemn form trial may take 12 to 24 months or longer, depending on complexity, the number of parties, and court availability. Urgent interlocutory applications (such as caveats or freezing orders) can often be obtained within days. The Probate List in the Supreme Court Equity Division aims for efficient case management, but contested probate litigation is inherently time-intensive.
Costs in probate litigation are at the discretion of the Court. The "probate exception" may apply where the testator's conduct or the circumstances surrounding the will caused the litigation — in such cases, costs may be ordered to be paid from the estate. However, this is not automatic. A party who brings or defends a claim unreasonably may be ordered to pay costs personally. Each case turns on its own facts, and costs risks should be discussed carefully with your legal adviser before proceedings are commenced.