For many, the first time they come across the legal requirements and stipulations of estate planning for a will is when they are prepared to write their own. Other times, someone may be appointed to be the executor or trustee of the will and must manage the affairs of the person who has passed away. However, there are times when someone has been left out of a will or received inadequate benefits from it.
This article will explore New South Wales-specific family provision claims regarding contesting a will in the state.
Process of contesting a will in NSW
A contest to a will means to challenge the validity of a person’s will on the basis that the will is not accurate, nor a reflection of the will-maker’s true intentions. The will may also be grossly unfair and left out a dependent or someone who should have been provided for. To contest a will, you must present sufficient cause for why it is not valid.
As an eligible person or party, you can contest all or just part of the will. Perhaps you were promised a certain asset, and that part of the wills estate was left to someone who may have “helped” the will-maker write the document instead. This is grounds for undue influence by pressure, coercion, or fraud.
Steps in disputing a will
The first thing to know about contesting a will in New South Wales (NSW) is that an eligible person only has twelve months after the testator’s death (unless there are extenuating circumstances) to make a claim against a valid will. When you want to submit a claim, you will do so through an application to the Supreme Court of NSW through a Family Provision Claim.
A Family Provision Claim aligns with the Succession Amendment Act of 2008 which aims to ensure adequate provision is provided for eligible people whether or not there was a will and if the eligible person was mentioned in the document or not. Generally, the NSW Supreme Court has set laws to support you in contesting a will when necessary.
You’ll need to check if the will has reached probate yet. Probate is when a will has been legally marked as valid and the assets are being distributed. If you launch a claim before probate, you will file a probate caveat which will prevent distribution and cannot be removed until all parties agree.
It is possible the dispute can be resolved outside of any court or legal proceedings, however, if no agreement can be made between the parties, the claim will need to be presented in front of a mediator. This is a legally appointed person who will moderate the discussion, and lead the conversation so both parties have a chance to present their arguments.
If the moderator cannot facilitate a settlement, someone will need to file a statement of claim, setting out the reasons why the will is valid or not valid. At this point, a judge will hear the arguments and conclude the outcome of the proceedings.
Sufficient cause for contesting a will
You can challenge the validity of a will before and after probate has been granted. Once the estate has been distributed, however, challenging the validity of the will and receiving benefits will become much more difficult.
While you may believe a will is unfair, this is not enough to contest it. There must be sufficient cause for why the will is not a true reflection of the testator’s intentions. Some valid reasons why you may contest a will include:
- The testator lacked testamentary capacity.
- The will is a forgery.
- Fraud is involved.
- Undue influence is clear.
- The testator did not approve of the contents of the document.
- Family provision.
- Trusts.
Proving these details will take some heavy lifting and working with estate lawyers will help you navigate through to success. A will dispute lawyer can help you meet all legal requirements necessary, while providing you with the best chance of winning against a contested will. Your family provision lawyer will dive into the details of the will-maker to find facts to support your claim such as their mental state at the time of signing the will, when changes may have been made and why those changes may have left you insufficient benefits.
Who is eligible to make a family provision claim
Because of the changes made to the law through the Succession Act of 2006, more people are eligible to contest a will. This list includes:
- Spouse, de facto partner or domestic partner.
- Former spouses.
- Children.
- Grandchildren.
- Any member of the household.
- Friends with close personal relationships with the deceased.
- Dependents.
- Anyone named in the will.
It’s important to note that just because you are eligible to contest the will, does not mean that you’re guaranteed benefits. The will needs to be proven invalid to some degree before the courts can approve changes to the deceased’s dying wishes.
The courts will consider many factors before granting provision, including how the changes will affect the other people mentioned in the will. When a change is made to provide more benefits to one person or party, other beneficiaries named will also lose some of the assets they were entitled to.
How long does it take to contest a will
Coming to a conclusion for disputing the will is entirely up to how quickly the two parties can agree. There could be a resolution in just a matter of weeks if a resolution is found, otherwise, the family law claim will need to be brought to court.
If the claim is brought to court then, it may take up to six months to find a moderator and schedule a date to continue discussions.
With no resolution at the moderation stages, the claim will go to court where both parties will need to write an affidavit and submit their arguments to a judge. This is now a Family Provision Claim which could last for up to 18 months for the court to decide on an outcome.
What happens after the claim has been won in your favour?
Contesting wills can be challenging, and winning the claim will depend on the strength of your argument and your financial circumstances. The judge will look at the financial needs of the person contesting the will and if they will benefit most from winning the case. For example, if a parent dies and one of their children is very wealthy, yet comes to the court claiming that they should have been left an equal share of the deceased estate as their siblings, the court will likely rule against that claim.
The average monetary provision winning from a claim typically falls between $100,000 and $500,000 depending on the size of the entire estate value available.
Gerard Malouf & Partners is here to help you get the compensation you deserve
Getting left out of a will or not receiving adequate compensation is an entirely discouraging event. While you may have felt very close with a testator or were depending on the estate after their death to make proper arrangements for your life only to find out that you did not receive what you were entitled to is a difficult situation to be in.
Instead of fighting court proceedings and family members while you grieve the loss of your loved one, let Gerard Malouf & Partners support your claim with no obligation legal advice. We have the experience and specialities you can depend on during this time. To get started or to learn more about our services, contact an estates lawyer today for a no-obligation consultation today.
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