Will Disputes

Disputing a Will

The death of a loved one can be a very emotionally draining time especially if complications arise with settling the estate of that person. If you have determined that a person’s Will has not left you with adequate provisions, then if you are an eligible person, there are opportunities for you to contest the Will on the grounds that it’s unfair to you, or if completely invalid, which is a whole other legal issue.

Below is some information on how to contest a Will you deem to be unfair in New South Wales.

What happens first?

In New South Wales, if you are an eligible person you can make a claim against the estate. A valid Will is normally lodged for probate. After this has been done the person who has been named the executor must apply to the Court for Probate to be appointed the Legal Personal Representative of the estate. Once this has been granted the executor is then in charge of distributing the assets among those named in the Will and dealing with any claims.

If you determine this Will has not adequately or properly provided for you in the Will, then you may be able to contest it. This is often called a Family Provision Claim, meaning that you are seeking further provision sometimes referred to as an award.

Practical Issues of Contesting a Will in New South Wales

It is important to understand who can bring a claim, when a claim can be brought and what a person can claim when contesting a Will. In New South Wales, a claim must be brought within 12 months of the death of the deceased by any of the following people:

• A spouse (married or defacto).
• A child. .
• A former spouse (married or de facto),
• A person who was at any time wholly or partly dependent on the deceased and who is a grandchild, or was at any time a member of the household of which the deceased person was a member.
• A person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.
• In New South Wales, a stepchild may also be able to claim if they have lived with the deceased stepparent.

You will need to prove that you are an eligible person (as outlined above) to make a claim, that the deceased was domiciled in New South Wales, that the deceased had a duty to provide for you and that the deceased did not make adequate provision for you. If you believe that you meet these requirements then you may be able to contest the Will.

What assets can be claimed in New South Wales?

A deceased person’s estate refers to assets in the name of the deceased at the time of their death, after all their debts have been paid. This means that any jointly owned assets are not included in the estate and therefore no claims can be made upon them.  However, the Court has power to designate certain property, such as jointly held property, as ‘notional estate’ if there are insufficient estate assets to meet the claim.

What factors can determine success in your claim?

To make a successful claim, you will need to establish that you are in financial need so you should be prepared to disclose your assets and income throughout the process. If you are deemed to be too financially stable, then you may not be able to prove that the deceased had an obligation to provide for you. Another thing that the court considers is how well you were provided for in the deceased person’s lifetime. If it is determined that they have already adequately provided for you in their lifetime then it may be decided that you are not now eligible for an award. There are other factors that are also considered by the Court.

Mediation

In New South Wales, it is compulsory to have either a court mediation or private mediation ordered by the Court before a Court will allocate a hearing date.  Most valid claims settle at or before the mediation, without going to a Court hearing.