Case Overview
- Our client’s grandmother passed away in 2021, leaving her property to her daughter, our client’s mother.
- After learning that she had not been provided for under the Will, our client contacted Gerard Malouf and Partners about contesting a Will.
- At a mediation, the parties were able to negotiate and resolve the matter for our client to receive in excess of $100,000.
Growing up our client had an extremely close relationship with her grandmother. Her mother was often at work or absent, so our client spent a lot of time during her younger years with her grandmother. After her relationship with her own mother became strained when she was a teenager, our client turned to her grandmother as a mother figure, in absence of her own.
Throughout her adult life, our client maintained a close relationship with her grandmother. She relied on her for maternal support including during the birth of her own children, and in relation to financial advice.
Our client’s grandmother passed away in 2021, leaving her property to her daughter, our client’s mother. If her mother did not survive her grandmother, our client would have been left the entire property. Her Estate valued at approximately $600,000, comprised mainly of the proceeds of a sold property.
After learning that she had not been provided for under the Will, our client contacted Gerard Malouf and Partners, trusted, caring and experienced Will dispute solicitors. Her solicitor, Richele Nelsen, had dealt with many similar matters before. She immediately obtained all relevant information to get the matter moving quickly and efficiently.
“After providing the Estate’s solicitors with notice of our client’s intention to make a Family Provision Claim, we were met with resistance by the Executors of the Estate, who heavily disputed our client’s eligibility and her relationship with her late grandmother.”
Richele Nelson
Our Approach
Our client was financially in need of assistance. She had limited assets and savings, and a growing young family to provide for. Our client sought provision out of the Estate to pay off debts, and to put funds towards the deposit of a home, to provide a stable environment for her children.
Shortly after commencing Court proceedings, we requested the parties participate in a mediation. Our client was extremely happy with this result as it provided her with financial security into her future.
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
Here the parties were able to negotiate and resolve the matter on the basis that our client received in excess of $100,000 from the 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.
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.
