WILL DISPUTES

We help people contesting a will and executors responding to a claim, from offices in Penrith, Gregory Hills and Wollongong.

If you have been left out of a will, or left less than you need, you may be able to contest it. In NSW this is usually done through a family provision claim under the Succession Act 2006 (NSW). A will can also be challenged on the basis that it is not valid.

Will disputes are time-sensitive and often emotionally difficult. Soden Legal helps people who want to contest a will and executors who are responding to a claim, from our offices in Penrith, Gregory Hills and Wollongong.

Who can contest a will in NSW?

Only an “eligible person” can make a family provision claim. Under the Succession Act this includes:

• The spouse of the deceased at the time of death
• A person who was in a de facto relationship with the deceased at the time of death
• A child of the deceased, including an adult child
• A former spouse of the deceased
• A person who was at any time wholly or partly dependent on the deceased, and who is a grandchild of the deceased or was at some time a member of the deceased’s household
• A person who was living in a close personal relationship with the deceased at the time of death

Being eligible does not mean a claim will succeed. Former spouses, dependants and people in a close personal relationship must also show that there are factors that warrant their claim.

What does the Court consider?

The main question is whether you have been left adequate provision for your proper maintenance, education or advancement in life. The Court looks at matters including:

• Your relationship with the deceased, and any obligations the deceased had to you
• Your financial resources and needs, now and in the future
• The size and nature of the estate
• The needs of other beneficiaries and claimants
• Any contribution you made to the deceased’s property or welfare
• Any provision the deceased made for you during their lifetime
• Your age and any physical, intellectual or mental disability
• Your character and conduct
• Any evidence of what the deceased intended

Notional estate: assets outside the will

In NSW, the Court can in some cases treat property that is outside the estate as available to meet a claim. This is called notional estate. Depending on the circumstances, it can include some assets the deceased gave away before death, jointly owned property that passed automatically to the surviving owner, and some superannuation and life insurance benefits. This can make a real difference where the estate itself looks small.

Time limit: 12 months from the date of death

A family provision claim must be filed within 12 months of the date of death. A late claim can only go ahead if the Court allows it, and you must show sufficient cause for the delay.

Executors are generally protected if they distribute an estate more than 6 months after the death without having been notified of a claim. That is why it is important to get advice early and put the executor on notice.

Challenging whether a will is valid

A different kind of dispute is a challenge to the will itself. A will may be invalid if:

• The will-maker lacked testamentary capacity when they made it, meaning they did not understand what they were signing, what they owned or who might expect to benefit
• The will-maker was coerced into making the will (known as undue influence)
• The will is forged, or there are suspicious circumstances around how it was prepared
• The will was not signed and witnessed correctly, although the Court can sometimes still accept an informal will

If a will is found invalid, an earlier valid will applies, or the estate passes under the intestacy rules. If you have concerns before probate is granted, a caveat can be lodged with the Supreme Court to prevent a grant of probate while your concerns are dealt with.

How a will dispute usually runs

1. Early advice. We look at the will, the estate, your relationship with the deceased and your circumstances, and tell you honestly whether you have a claim worth pursuing.
2. Notice to the executor. We write to the executor to notify them of the claim and ask them not to distribute the estate while it is considered.
3. Negotiation. Many disputes can be resolved by agreement before proceedings are filed.
4. Court proceedings. If needed, the claim is filed in the Supreme Court of NSW with supporting affidavits.
5. Mediation. The Court usually requires the parties to attend mediation before any hearing, and many claims settle at this stage.
6. Hearing. If the matter does not settle, a judge decides the claim.

Legal costs in family provision claims are often paid out of the estate, but this is not automatic. The Court can make different costs orders depending on the outcome and the size of the estate. We explain the likely costs and risks at the start. See our fees for more information.

Are you an executor facing a claim?

Executors have a duty to administer the estate properly, and in a family provision claim they must give the Court information about the estate. If you have received notice of a claim, do not distribute estate assets until you have legal advice. We can help you respond, negotiate and protect the estate.

Will dispute lawyers in Penrith, Macarthur and Wollongong

We help clients with will disputes and contested estates across Penrith, Campbelltown, Camden, Narellan, Gregory Hills and the Illawarra. Our team also prepares wills and powers of attorney and handles probate and estate administration. A well-prepared will is often the best way to avoid disputes in the first place. Learn more about our wills and estates lawyers.

To find out whether you can contest a will, book a confidential consult on 1300 155 005.