When someone makes a claim against a deceased estate in New South Wales, they may have to file affidavits or even testify before a hearing of the Supreme Court. This can seem like a daunting prospect, especially as the court will make an assessment as to the credibility of the testimony. This article explains some common missteps to avoid when giving evidence in a contested will case through an examination of the Estate of the Late James Sundell [2019].

What Is A Contested Will Case?

Under the Succession Act 2006, an eligible person can dispute a testator’s will if they feel that they were unfairly left out of the will, or the provision that they were left was inadequate for their maintenance. Many such claims are settled pretrial through negotiation or mediation, but some proceed to a hearing before the Supreme Court.

In a contested will case, the hearing may include examination and cross-examination of individuals such as the executor of the estate, the claimant, and other beneficiaries. Barristers will usually conduct the examination, and each side will typically prepare their own witnesses prior to the hearing so that the witness knows what questions to expect. During cross-examination, the opposing barrister will typically attempt to damage the witness’s credibility, weaken the evidence provided in the witnesses’ affidavit, and obtain admissions that support the opposing case.

What to do when giving evidence in a contested will case

If you are going to be a witness in a contested will case, there are some things that you can do to demonstrate credibility to the court.

• Listen carefully and make sure that you understand the question before answering;
• Ask for clarification if you do not understand the question;
• If you do not know the answer, or cannot remember, do not guess or make up an answer. Always take time to think before answering any question;
• Answer in an audible voice;
• Treat all parties in the court with respect, and address the judge as ‘Your Honour’;
• Review your affidavit or other documents prior to the hearing to refresh your memory; and
• Locate any contemporaneous material that can support your recollection of events (such as letters, emails, receipts or diary notes).

Estate of the Late James Sundell 

In the Estate of the Late James Sundell [2019], the case revolved around the validity of informal annotations to a will. The plaintiff in the case was the son of the testator. Under the original terms of the will, the son would inherit full ownership of a family business. The amendments to the will would leave the son only a part share of the business, but the son argued that these amendments were meaningless notes made in an effort to mislead the Family Court in an unrelated case.

The Supreme Court found the plaintiff to be an unsatisfactory witness for several reasons. The court described his claim as “unattractive”, and found his story about the amendments being a ruse to deceive the Family Court as “implausible” and “entirely fabricated”. The court found that the “blatant and ruthless dishonesty” the plaintiff attributed to his father did not align with his reputation as an honest man. The court also pointed out that the deceased never revoked or changed the will after the Family Court proceedings concluded, despite undergoing a risky operation soon after the case that might have resulted in his death. If the amendments to the will were only made in furtherance of a scheme to deceive the Family Court, presumably the deceased would have ensured that the will was updated to reflect his true intentions.

The evidence of the other executor, who was a long-standing business associate of the deceased was found to be highly credible. The court found it extremely significant that counsel for the plaintiff never asked Wooldridge during cross-examination to substantiate the claims that the deceased was involved in the scheme to mislead the Family Court. The court believed the evidence of the deceased’s widow when she refuted the plaintiff’s claims, despite the fact that she sometimes struggled to recollect events and was at times “vague and unsure”. The court also accepted the evidence of the daughter of the deceased, describing her as a “truthful and thoughtful witness”. The court drew particular attention to the fact that the daughter instructed counsel the day after her testimony to correct a mistake she made in her cross-examination testimony. As this correction was slightly adverse to her case, the court found this to be compelling evidence of her honesty.

The court ultimately dismissed the plaintiff’s argument because there was too much evidence and material to contradict his version of events. Most importantly, the court found that the credibility of the plaintiff was poor in comparison to other witnesses, who were considered honest and credible. The will was probated to include the handwritten changes.

An experienced solicitor can guide you through giving evidence in a contested will case. Please contact our specialist contested wills team today to discuss making a claim against an estate, or call 1300 038 223 to discuss any legal matter.

Require Evidence Needed To Contest A Will? Get Expert Support

Evidence needed to contest a will becomes crucial when you face potential family conflicts and financial stakes tied to an estate. With so much at stake, clear, documented evidence helps safeguard your interests and prepares you for the legal path ahead.

With will dispute lawyers by your side, you don’t have to face this challenge alone.

Armstrong Legal’s dedicated team offers empathetic, professional and timely support, helping you understand your rights and options. With decades of experience and a clear focus on client success, we provide the structured, reassuring will legal advice you need during complex estate issues.

Identification and collection of evidence can be a complex and delicate process that requires guidance.

How do you identify relevant evidence for a will contest?

Identifying the right will dispute legal requirements and evidence is crucial when you seek to contest a will.

It starts by recognising what counts as relevant. Building a solid estate claim involves going into specifics like financial dependency, medical capacity concerns and relationship history that may support a family provision claim. 

Each case is unique, and distinguishing these categories helps tailor a focused approach to contesting a will with the help of will dispute lawyers Sydney-wide or elsewhere.

Correctly collecting and preserving evidence is essential for legal use.

Collecting the evidence needed to contest a will carefully is fundamental for a credible legal process. For it to hold up in court, evidence must stay intact, credible and admissible. This requires attention to detail, which is why it’s important to gather evidence for will dispute claims without altering them and steer clear of actions that might undermine your claim. 

Examples of admissible inheritance dispute proof include a wide range of documents and testimonies. 

• Affidavits from those close to the deceased, including relatives, friends and doctors, can provide valuable personal insights and factual accounts.
• Diary entries or other written reflections from the deceased may add important context and depth to their state of mind and intentions.
• Records maintained by the solicitor can help demonstrate the deceased’s intentions, as well as the advice provided during the will-making process.
• A detailed statement of assets and liabilities can form part of the evidence needed to contest a will, as it provides a clear picture of the deceased’s financial circumstances at the relevant time.
• Observations from neighbours, carers or others involved in the deceased’s daily life may also be considered by will dispute lawyers Queensland-wide and in other locations, as these provide useful insight into their behaviour, routine and overall condition.
• Medical records documenting mental capacity, cognitive decline or other health concerns at the time the will was created can serve as critical grounds to contest a will.

More than just gathering information, preservation of the evidence needed to contest a will is about safeguarding the story it tells.

Lawyers help gather and strengthen evidence in a will contest.

Lawyers assess the information and family provision claim evidence already available to identify any gaps, inconsistencies or legal weaknesses that may affect the strength of your claim. They then advise on the additional documents that may be required to properly support your position. 

In matters involving disputed estates, timing, evidence and legal procedure can directly affect the outcome. This is why individuals asking “Can you contest a will after probate?” and other similar questions should consider obtaining clear legal advice early to help determine whether there are valid grounds to proceed.

Contested wills lawyers also play a pivotal role in securing formal records and other forms of legal proof to contest a will. Medical reports, financial statements and witness affidavits need proper channels for collection. 

Adding to this, they meticulously ensure everything is dated, verified and structured. Their expertise aligns your evidence with court standards, making each piece credible.

Armstrong Legal can help with gathering and assessing the evidence.

We provide guidance on what evidence to gather for your specific situation.

Our lawyers cut through the confusion by pinpointing the exact types of evidence for will challenge or contest relevant to your case. When you’re dealing with a family provision claim, our contested wills and probate lawyers focus your efforts where it counts. 

This targeted approach helps you avoid wasting time and energy on irrelevant details, ensuring your resources are concentrated on what genuinely supports your position.

Our team can assess the strength of your evidence.

Evaluating the strength of the evidence needed to contest a will is critical. That’s why we at Armstrong Legal thoroughly look into your situation, examining documents and related information to gauge the validity of your claim. 

This proactive evaluation of estate dispute evidence provides clarity on your standing, reducing uncertainty before you take any formal legal steps. Armed with this knowledge, you can decide with confidence whether to pursue further action.

We offer legal support in interpreting and structuring complex evidence.

Armstrong Legal helps decipher intricate financial, medical and relational information, translating it into a legally solid framework. This aligns your proof for will dispute with court standards, transforming complicated details into a structured case that meets judicial expectations.

A well-organised presentation from a good contest a will lawyer strengthens your position and supports your arguments effectively.

Frequently Asked Questions (FAQ)

Do I need to gather evidence before speaking to a contested wills lawyer?

No, you do not need to gather evidence needed to contest a will before speaking to a contested wills lawyer. Bring any relevant paperwork you already have, then a lawyer can first advise which documents matter to your case. This approach helps avoid collecting unnecessary or irrelevant information before receiving legal guidance.

Can digital records like emails or messages be used as evidence in a will dispute?

Yes. Digital records such as emails, text messages or other informal communications can support your position in a will dispute. These documents for will dispute may help show intent, personal relationships or financial support. Their relevance depends on the specific circumstances of the matter and the surrounding evidence.

Can evidence still be useful if it is incomplete or indirect?

Yes. In will contest cases, incomplete or indirect evidence can still support a claim when combined with other material. Courts may consider partial records, witness statements or circumstantial evidence to build a broader picture. The strength of the evidence needed to contest a will depends on how effectively it supports the overall claim and connects to the specific facts of the case

Resolve will disputes with expert help.

Armstrong Legal offers expertise in both contesting a family provision claim and challenging a will’s validity. Our team breaks down the evidence needed to contest a will, tailoring guidance to your unique circumstances while maintaining transparent communication about associated costs. The goal is to reduce stress by providing a structured process that aligns with the legal intricacies of will disputes.

Your peace of mind is central to our practice. Our contested wills and estate lawyers guide you through every step, ensuring confidence in your decisions. Contact us today.