Contesting a Will

A Will is a legal document which embodies the testamentary intentions of a deceased person. A Will identifies those persons/organisations/charities whom they wish to benefit from their Estate and in what proportion. On occasion however, a family member, a dependant or other closely related person may be excluded from the Will. The Succession Act empowers the Court to make provision for a person who has been excluded or otherwise not left an adequate provision in the Will.

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Contact Brydens Lawyers today for your first, free consultation to enable us to assess the merits of any claim that you may have to benefit under a disputed Will. In the event that a claim exists we may take on your matter on a No Win No Fee* basis and will discuss this further with you in the consultation.

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ARE YOU ELIGIBLE TO CONTEST A WILL?

The Succession Act defines who is an eligible person. It includes:

– The wife or husband of the Deceased at the time of their death

– A person with whom the Deceased was living in a de facto relationship the time of their death.

– A child of the Deceased or a child for whom the Deceased had parental responsibility for.

– A former spouse

– A person who was dependent upon the Deceased or a grandchild of the Deceased who was at the time of death or any other time a member of the household of the Deceased.

– A person living in a close and personal relationship with the Deceased at the time of their death.

WHAT ARE THE GROUNDS FOR DISPUTING A WILL?

Disputing a Will is a serious legal matter, and it’s essential to understand the grounds on which a Will can be contested. The Supreme Court has outlined several reasons for challenging a Will, the most common being:

– Undue Influence:
Undue influence refers to situations where the Will maker is pressured by a third party to draft the Will in a manner that contradicts their genuine intentions. Proving undue influence can be challenging. Evidence might include witnesses to coercion during the Will’s signing, the entire estate being left to an unfamiliar person, or significant deviations from the deceased’s previous Wills.

– Testamentary Capacity:
This pertains to the Will Maker’s mental state at the time of drafting the Will. The court evaluates if the individual was aware of the implications of their Will when they signed it. The court considers several factors, such as the Will maker’s understanding of the Will’s significance, awareness of the Estate’s nature and value, knowledge of potential claimants to their Estate, and the ability to evaluate the strength of these claims.

– Forgery:
This involves a claim that the will, or parts of it, were forged. It implies that the document doesn’t represent the true wishes of the deceased.

– Fraud:
Fraudulent claims arise when it’s believed that the Will maker was deceived when making the Will. It could involve misleading the deceased or providing false information that influenced the Will’s content.

HOW LONG DO YOU HAVE TO CONTEST A WILL?

A person has one year from the date of death to bring a Family Provision Claim, otherwise they would be considered out of time and would thereafter require the leave of the Court to bring an application.

ARE YOU ENTITLED TO A PROVISION EVEN THOUGH YOU ARE NOT IN THE WILL?

If the Court’s enquiry is answered affirmatively to the enquiries referred to above, the Court will then consider what provision should be made for that person.

DID YOU RECEIVE ALL YOU WERE ENTITLED TO IN YOUR WILL?

Once eligibility has been established, the Court will consider whether adequate provision has been made for that person. In addressing this enquiry the Court considers a number of factors such as the nature and duration of that person’s relationship with the deceased, that person’s means and needs, any financial or non-financial domestic or caring contributions made by that person, the size of the Estate, the obligations of the deceased towards that party or beneficiaries, the age of that party, the character and conduct of that party before and after the death of the deceased and any other matters considered relevant by the court.

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WHAT IS THE PROCESS TO DISPUTING A WILL?

Disputing a will is a structured process that involves several steps. It’s crucial to be aware of the time limit to commence court proceedings, as delays can impact the outcome.

– Initial Assessment:
Determine if you have a valid reason to contest the will. This involves evaluating if the grounds, such as undue influence, testamentary capacity, forgery, or fraud, are present.

– Eligibility Check:
Before contesting, ensure you are an eligible person as defined by the Succession Act 2006 (NSW). Eligible individuals include the deceased’s spouse, children, de facto partner, and other family members. Those who were partly dependent on the deceased or were in a close personal relationship with the deceased at the time of their death also fall under this category. It’s crucial to ascertain your relationship and dependency status to determine your eligibility.

– Time Limit:
Eligible parties typically have twelve months from the date of death of the deceased to contest a will in NSW. It’s essential to act within this timeframe.

– Family Provision Claims:
Under the Family Provision Act, if the Will is deemed valid but if an individual feels they have been unfairly provided for, they can initiate a family provision claim to seek a Family Provision Order. The court evaluates various factors when considering these claims, such as the relationship with the deceased, the claimant’s financial position, and any contributions made to the deceased’s welfare.

– Legal Proceedings:
If an amicable resolution isn’t reached, the matter will proceed to the Supreme Court.

– Cost Implications:
The costs of disputing a Will vary based on the case’s complexity and whether it reaches court. Generally, if a claim is successful, the estate covers the legal costs. However, if a Will is unsuccessfully challenged, especially without reasonable grounds, the court might not order the estate to pay the unsuccessful party’s legal fees.

WHY SHOULD BRYDENS LAWYERS ASSIST YOU CONTESTING A WILL?

Brydens Lawyers are the experts in respect to contesting a Will. Brydens Lawyers will provide comprehensive advice and guide you through the process for the best possible outcome in the most cost-effective manner.

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Losing a parent at any time is a sad and stressful time for a family. Our dealings with Natalie made things that bit easier. Natalie’s professionalism and patience made things seamless and that bit easier after Mum’s sudden passing. My siblings and I would recommend Brydens Lawyers
–
Paul Sironen of the NRL

Excellent service from start to finish, from the receptionist that answered my call to the Solicitor that took care of our Wills.
–
Jenny C, a client of our Wills and Estates division.