When someone close to you dies, the legal side of things can arrive before you have had time to grieve. You may have been named as executor and have no idea where to start. Or you may have read the will and felt that something is badly wrong. Often people come to us unsure which of those situations they are in, and so unsure what kind of help to ask for.
This guide explains the difference between a will dispute lawyer and a probate lawyer in NSW, how to work out which you need, and what happens when an estate starts as one and turns into the other.
Will Dispute Lawyer vs Probate Lawyer in NSW: The Short Answer
A probate lawyer helps the people responsible for an estate do their job properly. That usually means applying to the Supreme Court of NSW for a grant of probate, collecting the assets, paying debts and distributing what is left according to the will.
A will dispute lawyer acts when someone is challenging the will or how the estate is being handled. That might be a family member who believes they were left without adequate provision, someone who questions whether the will is valid, or a beneficiary who is unhappy with the executor’s conduct.
In practice, many firms do both kinds of work. What matters is being clear about whose interests the lawyer is protecting. An executor and a person bringing a claim against the estate cannot be represented by the same lawyer in the same dispute.
Comparison Table
| Probate and estate administration | Will dispute | |
|---|---|---|
| Who usually needs it | Executors named in the will, or administrators where there is no valid will | Family members or others who feel left out, beneficiaries in conflict, or executors responding to a claim |
| Main goal | Obtain the grant, finalise the estate and distribute it correctly | Resolve a challenge to the will, a claim on the estate or a disagreement about administration |
| Typical tasks | Locating the will, valuing assets, applying for probate, paying debts and tax, transferring assets | Assessing the strength of a claim, gathering evidence, negotiation, mediation and, if needed, court proceedings |
| Usual tone | Administrative and cooperative | Adversarial, though most matters settle without a final hearing |
| Timing pressure | Executors must act with reasonable diligence | Strict time limits can apply to bringing a claim |
Signs Your Matter Is an Administration Matter
If the main questions are practical ones, you most likely need probate and administration help. For example:
- You have been named as executor and need to know what to do first.
- A bank or share registry has asked for a grant of probate before it will release funds.
- The person died without a will and someone needs to apply for letters of administration.
- There is real estate to sell or transfer.
- Everyone broadly agrees with the will, but you want to make sure the estate is handled correctly.
Our probate and estate administration page explains the process in more detail.
Signs Your Matter Is a Will Dispute
A matter has usually become a dispute when someone is questioning the outcome rather than the paperwork. Common examples include:
- A spouse, partner, child or other dependant believes they were not adequately provided for.
- There are concerns about the will-maker’s mental capacity when the will was signed.
- Someone suspects the will-maker was pressured or unduly influenced.
- There is more than one will, or the will was not signed and witnessed properly.
- Beneficiaries believe the executor is delaying, hiding information or favouring themselves.
If any of these sound familiar, read our guide to contesting a will in NSW.
Family provision claims
In NSW, certain eligible people can ask the Supreme Court to order more provision from an estate if the will (or the intestacy rules) did not adequately provide for them. Eligible people can include a spouse or de facto partner, children, and in some cases former spouses, dependants and people who lived in the same household. Whether a claim is likely to succeed depends on factors such as the relationship, the claimant’s needs, the size of the estate and the competing claims of others.
These claims generally must be brought within 12 months of the date of death. That deadline matters for both sides: claimants need to act in time, and executors need to be careful about distributing the estate while a claim might still be made.
Challenges to validity
A challenge to the validity of the will is different. Rather than asking for a larger share, it argues that the will itself should not be followed, for example because of a lack of capacity or a problem with how it was signed. Someone with concerns may be able to lodge a caveat with the Supreme Court, which can stop a grant of probate being made while the issue is looked into.
When an Estate Is Both
Plenty of estates start as straightforward administration and become disputes later. An executor might apply for probate and then receive a letter from a lawyer acting for an adult child who was left out. At that point the executor still has to administer the estate, but they also need advice on how to respond to the claim and whether to hold back distributions.
The reverse also happens. A dispute settles at mediation, and then the estate still has to be administered in line with the agreed outcome. Getting the right advice early on both fronts tends to save time, cost and stress.
What Executors Should Do If a Dispute Is Possible
- Do not rush distribution. Distributing too early can leave an executor personally exposed if a valid claim is later made.
- Keep good records. Record every asset, debt, payment and decision.
- Communicate clearly. Many disputes grow out of silence. Keeping beneficiaries informed often reduces conflict.
- Get advice before responding. If you receive a letter of demand or notice of a claim, speak with a lawyer before you reply.
What to Bring to a First Meeting
Whether you are an executor or someone considering a claim, it helps to bring:
- A copy of the will (and any earlier wills you know of)
- The death certificate, if available
- A rough list of assets and debts
- Names and contact details of family members and beneficiaries
- Any letters or emails already received about the estate
- A short timeline of key events, including the date of death
Frequently Asked Questions
Can the executor’s lawyer also advise me as a beneficiary?
Generally, no. The executor’s lawyer acts for the executor. If you are a beneficiary with concerns, or you are thinking about making a claim, you should get your own independent advice.
Do all estates need probate?
Not always. Whether a grant is needed depends on the assets and what banks, registries and other institutions require. Some small estates or jointly owned assets may not need it. A probate lawyer can tell you whether it applies.
Does contesting a will always end up in court?
No. Many matters are resolved through negotiation or mediation before a final hearing. Even so, court proceedings may need to be started to protect a claim within the time limit.
Who pays the legal costs in a will dispute?
It depends on the type of claim, how it is resolved and any orders the court makes. Costs should be discussed at the start so there are no surprises.
Talk to Our Team
If you are not sure whether you need help with administration, a dispute, or both, our wills, estates and probate team can help you work it out. We have been helping Northern Beaches families since 1945. Get in touch or call 02 9977 1133 to arrange a time to talk.
This article is general information only and is not legal advice. Please speak with a solicitor about your circumstances.