Contesting a Will. The 2022 Complete Guide

contesting a will in nsw

In Australia, the legislation varies by state. However, identical grounds exist throughout the country for contesting wills. We examine some of the critical aspects when it comes to contesting a Will.

When Can a Will in New South Wales Be Contested?

A will can be contested for a variety of reasons; nevertheless, the most often cited justifications across all states are similar. One of the most prevalent reasons for contesting a Will is that it is not legally enforceable or that it has been tampered with. Other possibilities include the creation of another Will, which might be a more current Will, the failure to make enough provisions for loved ones, a mental illness or an unusual Will, or beneficiaries feeling the person was duped into writing a new Will.

It is critical to remember that a Will may be contested not just by beneficiaries named in the Will, but also by anybody having an interest in or relationship with the individual. If a result, it is critical to have your Will created by a solicitor and updated as your circumstances change. The following is a guide to contesting a will in Sydney or New South Wales, Australia.

Preventing Legal Disputes Over Wills

It is feasible to take efforts to avoid your Will being contested, one of the most important of which is to be upfront and honest with your loved ones about your Will. By telling them of the contents of your Will, they will understand what to expect when you die and how much each beneficiary is expected to get. A contemporary example of this is Bill Gates, who has previously indicated publicly that the majority of his estate would be bequeathed to charity, so obviate any possible complications.

Having a firm paper trail in the preparation of your Will, with each gift clearly described, can also help avoid a challenge, as if the wording used in the Will is clear and specific, the courts will seldom intervene with the individual’s desires. Thus, having a compelling rationale and compelling evidence that your Will was not altered with will enhance your Will.

What does it mean to “Contest a Will” or “Challenge a Will” imply?

A will dispute is a formal, legal protest or challenge to the validity of a person’s Will brought by an interested party on the grounds that

  • The Will does not accurately represent the maker’s genuine intentions. (The individual who creates the Will is referred to as the ‘testator’); or
  • The will is manifestly unjust; it disinherits people who were reliant on the deceased or someone who should have been catered for.

In general, in New South Wales (NSW), just objecting to the unfairness of a will does not suffice to dispute its legality. Will contests are typically brought on the grounds that the testator was not acting freely at the time of Will’s execution for one reason or another. The most often cited grounds for this allegation are that the testator was operating under duress or was a victim of fraud, that they lacked the required competence (‘testamentary capacity), or that they lacked the mental abilities essential to execute a valid Will (permanently or temporarily). A Will may also be challenged if it is suspected to be a counterfeit.

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Is There an Expiration Date for Contesting a Will?

If you believe you have been overlooked in a Will, you should contact one of our lawyers immediately. In New South Wales, the time restriction for contesting a Will was recently increased to 12 months from the date of the Will maker’s death.

Who Has the Right to Contest a Will?

In recent years, social developments have resulted in an increase in the number of people with more complicated family arrangements (e.g. subsequent marriages). Contesting a Will is not restricted to spouses and children in NSW under the Succession Act 2006; friends or relatives who think they have been inadequately provided for may also dispute a Will.

This includes ex-spouses, de-facto partners, same-sex partners, and any other dependants (wholly or partially), such as grandchildren and individuals in a close personal relationship with the deceased. To prevail in a Will contest, you must demonstrate to the Court that appropriate provisions were made for your upkeep, education, and development in life.

How Much Does Contesting a Will Cost?

The entire cost of a contested Will claim is determined by whether the claim is handled through a lengthy application before the Supreme Court or by negotiation or mediation before the Will dispute reaches the Court. Due to the fact that each case (and family) is unique, after we review the circumstances with you, we will have a much better understanding of the legal fees associated with contesting a Will.

In New South Wales, how is a will contested?

A Will may be challenged in court pursuant to legislative provisions, namely Chapter 3 (Family Provision) of the Succession Act 2006. (NSW). An individual may lodge a claim against the estate of a deceased person under this Act. To make a claim, one of the following circumstances must exist:

If the deceased was a permanent resident of a state other than NSW at the time of death, any real estate possessed in NSW must be considered an estate asset.

If the deceased was a permanent resident of New South Wales at the time of death

What are the grounds for opposing a Will?

Certain legal reasons exist for contesting a Will. These include the following:

  • Undue influence under duress
  • Undue influence arises when one party unduly sways another into entering into a contract, or in this case, a Will. Undue influence can invalidate a Will, but these situations are difficult to establish and need convincing proof of behaviour that forced the Will maker to draught the Will in a certain manner.

A Will may be challenged if the maker lacked testamentary capacity at the time of the Will’s execution. If this is the case, the court has the authority to deny probate of the Will. If this occurs, the person’s pre-existing Will is accepted to probate. This is why it is frequently critical not to destroy previous Wills.

There are several cases involving testamentary ability, and if a Will is contested on this ground, the court will decide based on the facts given. If a person’s ability is in doubt, possibly as a result of frailty or disease, a medical report should be sought before to drafting the Will to ensure that this issue is not raised after the Will takes effect.

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What other evidence may the Court examine when opposing a Will?

  • The size of the deceased’s estate
  • Relationships with the deceased are classified according to their duration and type.
  • Obligations or responsibilities owed to the applicant by the deceased
  • The applicant’s financial requirements and needs
  • Contributions made by the applicant to the decedent’s estate

When is it permissible to oppose a Will?

A Family Provision Order application must be submitted and lodged with the Court’s Registry within 12 months after the dead person’s death. This time limit is only applicable to deaths occurring on or after 1 March 2009.

How much of the decedent’s inheritance may a successful claimant receive?

The sum will be determined by the Court. It may be contingent upon:

Both the estate and the applicant’s financial situation

If the candidate has a physical or mental handicap or disease (the Court might give that person more than what they would give to a non-disabled or successful applicant in good health).

Is it possible to contest an estate if there is no Will?

Yes. If a person dies without leaving a Will or if the specified beneficiaries do not survive the decedent, the inheritance is distributed according to the statutory laws of intestacy. Often, these regulations work unjustly, and as a result, it is usual for an eligible individual to contest an estate in the absence of a Will.

What is referred to as a ‘Notional Estate’?

Assets owned entirely by a deceased individual will be included in the Court’s Probate application. Despite this, the dead person’s primary asset in the moments preceding death was frequently property held in joint tenants or superannuation. In NSW, the Court has the authority to designate assets that are not generally included in a deceased person’s estate to fulfill an order for the provision or further provision. These assets are referred to as the ‘notional estate.’ Certain transactions or agreements engaged into up to three years before to the date of death may also be classified as notional estate, therefore the fact that the dead died with no assets does not always indicate that contesting the Will is pointless.

How long does it take for Court procedures to begin when I initiate them?

The majority of cases are resolved before a final defense hearing. In most cases, if the issue is not resolved, a final hearing will occur within 1-2 years after the application is submitted. While minor issues can be resolved quickly, more complicated cases require additional time for all parties to prepare their claims, which means that a hearing may not be scheduled until much later.

Am I required to appear in Court?

You will be compelled to appear in Court if the matter advances to a final defense hearing. Apart from the final hearing, the only other time you will be obliged to appear in court is for the mandatory mediation, which will take place between 3-6 months after the proceedings begin. Our agency and the estate’s legal counsel also attend the mediation. Mediation provides an opportunity to resolve the matter without resorting to litigation. Because our lawyers represent you at the mediation, we make every effort to reach an amicable settlement on your behalf.

Is it possible to contest a Will if I am out of time?

Yes. In NSW, procedures to contest a Will and obtain a ‘Family Provision’ order must be instituted within 12 months of the decedent’s death, unless the Court grants an extension for good reason demonstrated. Sufficient cause can be proven in a variety of ways and after all relevant circumstances have been considered, including whether the estate has been divided. If you have run out of time or the 12-month limitation period is about to expire, please call our office immediately for a no-cost, no-obligation examination of your case, including whether there is sufficient reason to extend the 12-month term in which to contest the Will.

What are the steps to opposing a Will?

The following are some of the general processes necessary to contest a Will:

Step 1: To begin, you must determine whether or whether you are a qualifying claimant (as mentioned in question 3 above).

Step 2: The claimant tells the executor of the Will of their intention to lodge a claim (often through their solicitor). The executor is instructed to withhold distribution until the claim is resolved.

Step 3: Both parties may enter into discussions in order to resolve the dispute without resorting to legal procedures. If a resolution is possible, a written agreement is drafted to safeguard all parties.

Step 4: If the case cannot be settled amicably, court proceedings will be initiated. A summons and affidavit must be submitted with the court, including any proof supporting the allegation. This document is then delivered to the executor.

Step 5: The executor and beneficiaries are given the opportunity to defend themselves against the claim.

Step 6: Following that, all parties to a Will dispute will engage in a mediation session to attempt to resolve the estate issue.

If the estate claim is not settled during mediation, a trial will be scheduled and all parties will be required to submit their opposing arguments to the court during a final hearing. They must establish to a judge that they have a financial need, which is then weighed against the estate’s value.

Step 8: The judge hears all relevant information and then determines whether or not to make a provision – or further provision – in the estate. and the monetary value. Additionally, the judge determines how the court expenses will be paid.

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How long do I have in Australia to dispute a Will?

In Australia, there is a time restriction for contesting a Will, and each state and territory has its own:

In New South Wales and the Australian Capital Territory, you have 12 months from the date of death to file a claim in court.

You have six months in Victoria from the date of the grant of probate to bring a claim in court.

You have six months from the date of death to inform the executor of a claim and another three months to file the claim in court in Queensland.

In the Northern Territory, you have 12 months from the date of probate to make a claim; in Western Australia, you have six months from the date of probate to lodge a claim.

In Tasmania, you have three months from the date of the grant of probate to submit a claim in court.

Legal Fees If Your Claim Is Rejected: The Risks Involved in Filing a Claim

The primary risk that anyone filing a claim confronts is that if they are unsuccessful, the estate may seek reimbursement for its legal costs. Not only would an unsuccessful claimant be required to pay the estate’s legal fees, but they will also be required to pay their own legal costs to their lawyer, even if their claim is unsuccessful.

Hence you need to ensure you receive the best possible legal advice. At Australia Lawyers, we have a team of Accredited Estate Dispute Specialists.

Mediation/out-of-court settlements

The majority of will conflicts are resolved without a Court hearing: they are frequently resolved in a mandatory mediation meeting held shortly after the Court files the Application, and well before the Court ever hears the matter.

However, you should not initiate a claim unless both you and your legal team are persuaded that your claim is sufficiently strong to succeed in Court.

At mediation, you are not required to engage in face-to-face conflict with the opposing party. Your own legal team will collaborate with the estate’s legal team to determine whether a settlement is possible, and in most cases, a settlement may be achieved without your involvement.

What Should You Do Now?

At Australia lawyer, we can assist you with all matters relating to estate litigation. Contact us Canberra, Perth, Adelaide, Melbourne Queensland Lawyers today.