Common Misconceptions about Contesting a Will in NSW
Contesting a will is a complex legal process that should only ever be undertaken with the advice of a specialist will dispute lawyer. There are a range of common myths about contesting a will that can lead to misunderstandings, delays, and potential legal problems.
Remember, if you are considering contesting a will, you must make an application within 12 months of the death.
5 Common Misconceptions About Contesting a Will in NSW
MYTH: Contesting a will is easy
Contesting a will occurs when a person takes issue with how much (or how little) they receive within a will. The desirable outcome is generally to secure a larger portion of an estate than what was left to them.
This is an intricate process that requires a detailed understanding of the Succession Act 2006 (NSW), and an understanding of the various nuances a mediator, courtroom, or other legal representatives will look at when determining the potential success of a will contest.
It’s crucial to consult with a specialist wills and estate lawyer to explore the strength of your claim to contest a will. There are two key criteria for this: firstly, that you are deemed an ‘eligible person’ to make a claim, and secondly, that the benefit you received in a will was not adequate for your ‘proper maintenance, education or advancement in life’. This is also known as making a ‘family provision claim.’
There is nothing easy about contesting a will in NSW, especially if negotiations prove unsuccessful and the matter proceeds to a hearing.
MYTH: Any family member can contest a will
There is a specific set of requirements that is used to determine if a person is eligible to contest a will.
Only an eligible person is permitted to contest a will in NSW.
Section 57 of the Succession Act 2006 (NSW) defines ‘eligible person’ to include:
- de facto spouse
- former spouse
- wholly or partly dependant grandchild
- wholly or partly dependant members of the deceased’s household, or
- a person with whom the deceased person was living in a close personal relationship at the time of the deceased’s death.
Once a person is found to be an ‘eligible person,’ the second step is to evaluate whether adequate provision for the proper maintenance, education, or advancement of life of the eligible person has not been made in the will in question. It is not enough to simply be named as a beneficiary in a will and be disappointed with your inheritance.
MYTH: Any dissatisfaction with a will can be grounds for contesting
If you have been left out of an estate or believe the portion allocated to you is unfair, you should firstly contact a wills and estate lawyer to help you determine if you are an eligible person, and whether a family provision claim is a suitable course of action for you.
Pursuing a will contest would likely be counterproductive if:
- The will contest claim is brought by an ineligible person as defined by NSW law (i.e. a remote family member such as a second cousin with no close personal or domestic relationship, a child born by IVF many years after the deceased’s death, a neighbour, etc.).
- The person has a sense of dissatisfaction or unhappiness about what was left to them in a will, or harbour a grievance towards the deceased or the deceased’s beneficiaries.
- A person was in the habit of receiving infrequent gifts from the deceased or incidental support, as opposed to having an ongoing dependence or receiving substantial provision for the advancement of their life.
A lawyer is best placed to make an assessment if you have valid grounds for contesting a will.
Even if it is determined you are are not an ‘eligible person’ for the purposes of a family provision claim under section 59 of the Succession Act 2006 (NSW), you may still be eligible to challenge a will on grounds including suspicious circumstances, undue influence, fraud and/or the testator’s lack of testamentary capacity.
This is known as challenging a will (taking issue with the validity, rather than the fairness of a will) and is a different process to contesting a will; however, a person can bring both claims simultaneously if the facts and circumstances permit.
MYTH: The process of contesting a will is quick and easy
Contesting a will is often a time-consuming and difficult process, which can encounter many unexpected delays and complications. Using a lawyer who specialises in will contests is the best way to offset any potential roadblocks – however, even so, the process may not be straightforward.
Once a solicitor has ascertained the eligibility of the person and claim, the executor of the will is notified of the intention to make a claim. It is important to put the executor on notice of a potential claim to reduce the risk of the estate being distributed.
The process that follows can be complex and include steps such as formal negotiations, mediation, and court proceedings.
If the dispute cannot be resolved through negotiations, court proceedings may be necessary. Court proceedings may be commenced by way of summons or statement of claim (depending on the circumstance) and is usually accompanied by an affidavit, setting out the evidence and relevant documents to support the claim. A claimant (i.e. the eligible person) has the burden of proving the legal requirements that entitles them to some (or a larger share) of an estate.
Clearly, the process is exhaustive and should only be undertaken alongside the expert legal advice of a specialist wills lawyer. The time this can take can vary dramatically with the circumstances – it will often take many months or even years to reach a resolution.
Get Legal Assistance in NSW Today
Do you have questions about a potential claim in relation to an unfair will? If you believe you may have grounds to contest a will, contact us now on [email protected] or 1300 414 844 for a free and confidential consultation.
We offer flexible fee structures designed specifically for each client including sliding fee scales, payment plans, pensioner discounts and conditional ‘no win, no fee’ costs agreements in select cases.
Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. If you have a question or legal issue we recommend you contact a lawyer and obtain legal advice specific to your issue.