Executor’s Guide: What to Do If a Will Is Challenged in NSW

Wills & Estates: Guide for Executors

Being appointed as an executor is an honour, but it also comes with serious legal responsibilities. When someone contests the will, the role becomes even more challenging. Many executors feel overwhelmed, unsure of their duties, and worried about conflict within the family.

At Browne Linkenbagh Legal Services, we regularly guide executors across the Blue Mountains and NSW through the contested wills process. This practical guide outlines what you need to know — and the steps you should take — if you’re faced with a will challenge.

What Does It Mean When a Will Is Contested?

A will is “contested” when someone brings a Family Provision Claim under the Succession Act 2006 (NSW), arguing the deceased did not leave them adequate provision.

A will may also be “challenged” on validity grounds, such as:

  • Lack of mental capacity

  • Undue influence or pressure

  • Incorrect signing or witnessing

  • Fraud or suspicious circumstances

As executor, you must remain neutral and follow the law — even if you disagree with the claim.

1. Don’t Panic — Get Legal Advice Early

Contested wills are common, and most are resolved without a court hearing.
Your first step should always be to seek legal advice from experienced estate lawyers.

A lawyer will help you:

  • Understand your duties

  • Protect the estate’s assets

  • Respond appropriately to the claim

  • Navigate the Court process

  • Avoid personal liability

At Browne Linkenbagh Legal Services, we guide executors through each stage to ensure the estate is administered properly and fairly.

2. Stop Distributing Any Estate Assets

Once a will is contested, you must not distribute any funds or assets until the dispute is resolved.

Doing so could make you:

  • Personally liable

  • Forced to repay funds

  • Exposed to court penalties

Your duty is to preserve the estate until the Court or a settlement determines how it should be divided.

3. Gather Key Documents

Your lawyer will usually ask for:

  • The original will

  • Any previous wills

  • Probate application documents

  • Death certificate

  • Asset and liability information

  • Details of beneficiaries and potential claimants

  • Relevant correspondence

Collecting these early helps the process run more smoothly.

4. Understand the Timeline

In NSW, a Family Provision Claim must generally be made within 12 months of the date of death.

Once a claim is filed, the process typically involves:

  1. Filing of the claim in the Supreme Court
  2. Exchange of evidence (affidavits, financial documents, relationship history)
  3. Mandatory mediation
  4. Negotiation and settlement (most cases settle here)
  5. Hearing (only if no agreement is reached)

As executor, you play a central role in providing information, attending mediation, and ensuring the estate is protected throughout.

5. Stay Neutral — Even if You’re Also a Beneficiary

Many executors are also beneficiaries, but legally you must remain impartial.

This means:

  • Not favouring one beneficiary over another

  • Not arguing the case for or against the claimant

  • Allowing your lawyer to manage communications

  • Acting in the best interests of the estate as a whole

Your neutrality helps protect you from personal liability and ensures the process is fair.

6. Attend Mediation

In NSW, almost all contested wills cases go through mandatory mediation.

As executor, you must:

  • Participate in good faith

  • Provide documents and information

  • Consider settlement options

  • Ensure any agreement is practical and lawful

Most matters settle here, saving significant time, stress and legal costs.

7. Follow Court Orders and Legal Advice

If the case does not settle, the Court will issue directions about evidence, documents and timelines.

Your role is to:

  • Comply with all orders

  • Cooperate with your lawyer

  • Keep records of all decisions

  • Continue to protect the estate’s assets

Failure to follow Court directions can cause delays — and may expose you to costs orders.

8. After Resolution: Administer the Estate Properly

Once the dispute is settled or the Court delivers its judgment, you can:

  • Pay debts and expenses

  • Distribute assets according to final orders

  • Prepare estate accounts

  • Finalise your duties as executor

Your lawyer will help you ensure all steps are completed correctly.

Executor Duties Can Be Complex – You Don’t Have to Do It Alone

Contested wills can be legally complex and emotionally draining, especially when family relationships are involved. As executor, you have a duty to protect the estate — but you are not expected to handle disputes on your own.

At Browne Linkenbagh Legal Services, we support executors with:

  • Family Provision Claims

  • Validity challenges

  • Mediation and dispute resolution

  • Estate administration

  • Supreme Court representation

  • Practical, compassionate guidance every step of the way

Need Help as an Executor Facing a Will Challenge?

If you’ve received notice of a Family Provision Claim, or you’re concerned a challenge may be coming, our experienced team can help protect you and the estate.

Browne Linkenbagh Legal Services
Trusted estate dispute and contested wills specialists in the Blue Mountains and NSW.

Contact us now info@browne-link.com.au

More information can be found on the Supreme Court website

www.supremecourt.nsw.gov.au