We were contacted by our client, an adult daughter wanting to make a family provision claim against her late father’s estate. Our client initially contacted us by phone and was given advice on the spot about her eligibility to bring the claim and likely prospects of success.
Our client was sexually abused by her paternal grandfather and due to conflict arising from these circumstances, our client had a long period of estrangement from her late father.
“As an adult daughter, our client was automatically eligible to bring a claim under the New South Wales legislation.”
Garbis Kolokossian
Our Approach
A conference call was then arranged with a senior solicitor and steps were taken to commence formal proceedings in the Supreme Court without delay.
Advice was provided to our client that the relationship with the deceased is a relevant consideration when determining whether a claim would be successful, however in our client’s circumstances the breakdown in the relationship can be reasonably explained.
At the date of his death, our client’s father left behind one other child and a widow. After commencing formal proceedings, the parties participated in a Mediation by telephone. Our client was ecstatic with the result and was going to use the funds for improvements to her family home.
If you are seeking information about contesting a will and making a family provision claim, contact Gerard Malouf & Partners. You can speak to a solicitor and obtain advice on your rights and the best way forward with your claim.
The Result
With the assistance of one of our team of Will Dispute expert lawyers who led the negotiations, the matter was ultimately resolved on the basis that our client would receive a one quarter share of the entire estate.
Frequently Asked Qeustions
More Information
The first step in disputing a will should be a consultation with solicitors from a law firm that includes family provision claims among its areas of expertise. This conversation will involve a frank analysis of your dispute and its chance of success.
If seasoned lawyers consider your matter valid, then you can declare your intent to claim. This should take place not long after the death or grant of probate (New South Wales permits filings up to 12 months post-death, but the limit is 6 months in). You must clearly argue that you have a pertinent connection to the decedent entitling you to compensation you didn’t initially receive, and explain the “moral obligation” to you this individual should have met.
Successful arguments of these facts will earn you a day in court. Depending on the situation, you may be more likely to resolve this in mediation than before a magistrate; it all depends on how strongly the defendants oppose your claim. You can receive financial compensation in either context if your case is resolved in your favour.
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Do you need a lawyer to dispute a will?
You are entitled to represent yourself (and yourself alone) in all Australian legal matters, criminal or civil. But you cannot represent anyone else; e.g., without a lawyer, you wouldn’t be able to mount a challenge alongside others if all of you were disenfranchised by one particular beneficiary.
Moreover, unless you have significant experience in family law, doing so is a huge mistake. Contesting a will is an extremely complex undertaking, involving intense emotions and high tension, and while an experienced lawyer can manage these matters effectively and objectively, you almost certainly cannot.
Will Dispute Lawyers will also be invaluable in cases challenging the actions of an executor, which can go as high as the Supreme Court.
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How the process of making a claim on an estate works?
In NSW, if you are an eligible person and you wish to contest a will, you must do so within 12 months from the date of the testator’s death. In some cases, the court may make an exception if you were unaware of the death of the testator for longer than 12 months.
As an eligible person, you will likely be making a family provision claim. The court will consider many factors when judging whether or not you are eligible to receive an inheritance due to a contested will.
