Contesting a Will
The death of a family member is a very stressful and upsetting time which can be compounded if you have not been adequately provided for in the deceased’s Will. In these circumstances, you may be entitled to contest the Will.
It is important to understand the difference between contesting a Wwill and challenging a Will.
If you are contesting a Will, you are making a claim that the will does not make proper provision for you as a beneficiary. This can either be because you are not named as a beneficiary at all or because you are named as a beneficiary, but your entitlement under the Will is insufficient.
Challenging a Will on the other hand, is a challenge to the validity of the Will itself. This can be for a number of reasons. It could be because the person making the Will lacks the mental capacity to make sound decisions, because the Will is fraudulent, or signed under duress. Often, a Will is challenged in an attempt to invalidate it so that an earlier version of a Will that’s more favourable to the challenger, is found to be the valid Will.
Although a Will maker has complete control over who gets their assets when they pass away, the law permits an eligible person to contest the Will and seek provision from the deceased’s assets. These laws differ significantly from one state to the next. In NSW, such applications are governed by Chapter 3 of the Succession Act 2006. In order for the Act to apply, the deceased must have permanently resided in NSW at the time of his or her death, or owned real estate assets in NSW if he or she lived outside of NSW at the date of his or her death.
Who is entitled to contest a Will?
In order to contest a Will, you must be an “eligible person”. An eligible person includes:
(a) A spouse or defacto partner of the deceased;
(b) A biological or adopted child of the deceased;
(c) A stepchild of the deceased but only if that person was financially dependent on the deceased;
(d) A person with whom the deceased was living in a close personal relationship at the time of their death;
(e) A person who was at any time wholly or partially financially dependent on the deceased and was a member of the deceased’s household; or
(f) Grandchildren of the deceased, but only if they were financially dependent on the deceased.
How to Contest a Will
The most crucial aspect in a Will dispute is to appoint an experienced estate and Will dispute lawyer. Contesting a Will is a complicated process which requires the skill and knowledge of a wills and estate lawyer to ensure that you obtain the best possible outcome. We will evaluate your claim, gather and prepare the necessary evidence to support your claim and support you through the difficult process to ensure that we achieve the best possible outcome for you.
In NSW, a person has 12 months from the date of death of the deceased to file a claim to contest a Will.
On the other hand, if you want to challenge the legality of a Will, for example, owing to lack of capacity or undue influence, you must do so before probate is granted to the executor(s) named in the will.
What does the court consider?
The court must decide if adequate provision was made for you in the Will of the deceased. It is not enough if you simply believe that the Will is unfair.
The court will consider your financial circumstances and the needs and circumstances of the other beneficiaries. In addition, the court will consider other matters including:
(a) The size of the estate;
(b) The nature and duration of your relationship with the deceased.
(c) The types of contributions made by you to the improvement of the deceased’s estate;
(d) Any legal or ethical/moral obligations the deceased had to you (such as obligations as parent and child or spouses);
(e) Any direct evidence of statements made by the deceased to you prior to their death.
What powers does the court have?
The court has the power to decide whether or not the applicant is provided for from the deceased’s estate, if they are already a beneficiary, and whether the entitlement should be varied because it does not make adequate provision. The court’s powers are discretionary and the exact amount (if any) is determined by the court exercising that discretion based on all of the evidence.
Who pays the costs of the Application?
If the Will is successfully contested, the costs are generally payable from the estate. However, the vast majority of Will disputes are settled by negotiation, which means that the costs are generally negotiated as part of this settlement process.
Lawpoint has flexible and transparent cost structures that will give you the freedom to contest a Will with the help of highly experienced and effective lawyers. Contact us today to discuss your options.
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