Case Overview
- Our client found out that she was only entitled to $10,000.00 from her Stepmother’s Estate.
- Gerard Malouf and Partners’ experienced Contesting Wills solicitor and Managing Partner, David Cossalter understood that the family dynamic was complicated and took the time to explore our client’s difficult history with her family.
- David and his team were able to successfully argue that after all the years of the deceased being her stepmother, such a small amount did not reflect their relationship.
Our client sought the expertise of the solicitors at Gerard Malouf and Partners when her stepmother passed away in early 2020.
She found that she was only entitled to $10,000, which the deceased had left as a legacy amount. This contrasted with her half-siblings, who were given the majority of the estate to split between themselves.
In order to contest a will, you need to determine if you are eligible to do this. A stepchild is not automatically able to contest the deceased’s will as a biological child would be. However, you are able to establish this through the nature of your relationship with the deceased. This does not mean your relationship has to have been perfect the entire time. Most relationships are not. Instead, if you are able to provide evidence that you were wholly or partly dependent on the deceased and lived with them at one stage, you may be successful.
In this instance, our client’s parents divorced when she was young. After some time, her father’s partner began to live with them and this continued until she reached adulthood. Their relationship had its ups and downs as any relationship between mothers and daughter.
Our Approach
Gerard Malouf and Partners’ experienced Contesting Wills solicitor and Managing Partner, David Cossalter understood that the family dynamic was complicated and took the time to explore our client’s difficult history with her family. He was able to pinpoint that what distinguished our client from other instances is that throughout this time, our client was dependent on the deceased. Even after she moved out, the deceased still provided emotional and financial support to our client. This came in the form of gifts, assistance and a presence during important moments.
Armed with an in-depth knowledge of the governing law and the Court’s approach to modest estates, David and his team were able to successfully argue that after all the years of the deceased being her stepmother, such a small amount did not reflect their relationship and our client deserved more.
The Result
In light of the modest estate, we engaged with the estate solicitors through exchanges of offers, resulting in an improved settlement and a satisfied client.
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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Are you eligible to make a claim on an estate?
Are you wondering who is eligible to contest a will in NSW? In most cases, contesting a will can only be done by an eligible person. In NSW, an eligible person is defined as:
- A current or (in some cases) ex-spouse of the deceased
- A domestic partner (person who was living in a de facto relationship with the deceased)
- A “natural” or adopted child of the deceased
- A dependent grandchild of the deceased
- Another person who was was at any time a member of the deceased’s household and at that same time wholly or partly dependent on the deceased
- A person who had a close personal relationship with the deceased and was living with them at the time of the deceased person’s death
- A person who helped add to the value of the deceased’s estate
- Someone to whom the deceased made promises about an inheritance
Your compensation lawyers can help you file your family provision claim application and gather the evidence you need to support your claim and status as an eligible person.
You can make a claim even if:
- You are not directly related to the deceased, as long as you fall under another definition of an eligible person
- You are already named in the will, but you feel the provision made for you was too small or unfair
- You are representing a minor child for their inheritance
- You have been “disowned” by the testator
- You have had no contact with the testator or other family members for years
- You didn’t know the testator had passed away for an extended period of time
Getting legal advice about contesting a will in NSW can help prepare you for the claims process.
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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.
