Will Contest & Dispute Lawyer in Sydney, NSW

In NSW, a person may leave their assets to anyone they choose when they die (known as ‘testamentary freedom’). In some circumstances the law can interfere with the deceased’s testamentary freedom and effectively rewrite the terms of the deceased’s will by altering the distribution of the deceased’s estate. This is referred to as a ‘family provision order’.

A person may contest a will by making a ‘family provision claim’ under the Succession Act 2006 (NSW).

The first step to contesting a will is to determine whether a person is an ‘eligible person’ as defined in section 57 of the Succession Act 2006 (NSW). Eligible persons include spouses, de facto spouses, children, former spouses, wholly or partly dependant grandchildren or members of the deceased’s household, and those with whom the deceased person was living in a close personal relationship at the time of the deceased’s death. 

In the case of former spouses, wholly or partly dependent grandchildren or members of the deceased’s household, or those with whom the deceased person was living in a close personal relationship at the time of the deceased’s death, the applicant must also prove that there are ‘factors which warrant the making of the application’.

Once a person is found to be eligible to contest the will, the second step is to consider whether adequate provision for the maintenance, education, or advancement in life of the eligible person has not been made by the will of the deceased person.

Who Is Eligible To Dispute a Will in Sydney or NSW

The definition of ‘eligible person’ is found in section 57 of the Succession Act 2006 (NSW) and includes spouses, de facto spouses, children, former spouses, wholly or partly dependant grandchildren or members of the deceased’s household, and those with whom the deceased person was living in a close personal relationship at the time of the deceased’s death.

The deceased’s spouse at the time of their death

A person living in a defacto relationship with the deceased at the time of their death

A child of the deceased

The deceased’s former spouse

A person dependent on the deceased

A grandchild of the deceased

A child of the deceased

A person who had a close personal relationship with the deceased at the time of their death

Making a Family Provision Claim in NSW

In NSW, a person may contest a will by making a claim for provision (or further provision) from a deceased’s estate under the Succession Act 2006 (NSW). This is referred to as a ‘family provision claim’.

The first step to contesting a will is to determine whether a person is an ‘eligible person’ as defined in section 57 of the Succession Act 2006 (NSW).

Once a person is determined to be an eligible person, the second step is to consider whether adequate provision for the maintenance, education, or advancement in life of the eligible person has not been made by the will of the deceased person. When determining whether a family provision order should be made, the court may have regard to the 16 factors set out in section 60(2) of the Succession Act 2006 (NSW).

contest-a-will-in-nsw-lawyer

The Process Involved in Contesting a Will

Meet with you to assess the situation and likelihood of success

The first step to contesting a will requires you to attend a conference with one of our inheritance lawyers. The client conference is an opportunity for you to provide an overview of the facts and circumstances and for us to ask further questions.

Once we have an understanding of the facts and circumstances and have obtained a copy of the will and any other relevant documents we will provide you with written legal advice to best ensure that you understand the process and the strength of your position from the outset.

Submit a Family Provision Claim

Once you have been advised of the strength of your claim, we may commence negotiations by writing to the executor or other beneficiaries to make a settlement offer or to respond to a settlement offer. In some cases negotiations can achieve a fast resolution. In other cases, negotiations may continue for months or longer.

We may also need to write to the executor, other parties or government agencies to obtain copies of other relevant documents.

Take the matter to court

If negotiations and mediation do not resolve the dispute, and you have received advice in relation to your prospects, you may instruct us to commence court proceedings. This will involve the preparation of court documents and evidence. We can provide you with firm and fearless legal representation and dedicate ourselves to securing you the best possible outcome.

In NSW, a family provision claim must be commenced within 12 months from the date of the deceased’s death, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time.

Why it Pays to Have Empower Wills and Estate Lawyers On Your Side to Dispute a Will in Sydney

Experts in Our Specialised Area of Law

Our inheritance lawyers specialise in will and estate disputes and assist clients to claim or protect their interests in an estate through a combination of expert legal advice, representation, and strategy.

No Win, No Fee

In some cases we can offer clients a Conditional Costs Agreement, otherwise referred to as a “no win no fee” agreement. A “no win no fee” agreement means that a client will not have to pay any of our fees unless and until a successful outcome is achieved*.

Proven Track Record of Winning Cases

We consistently deliver successful results for our clients. Our client satisfaction is evident through our word of mouth referrals which are now our largest source of new clients.

High Level of Client Care and Professionalism

We understand that the death of a family member or loved one can bring grief and heightened emotions. We acknowledge that inheritance claims can compound this grief and cause or deepen personal or family conflict. We provide dedicated client care, tailored to each client’s particular circumstances, to support them through the process whilst working together to deliver the best results. We understand that each client has different circumstances. Some clients require a lawyer to adopt a firm and fearless approach to negotiations and litigation, disregarding any existing relationships and seeking a “leave no prisoners” approach, while others prefer a more collaborative approach with a view to preserving or mending existing relations through mediation and family counselling. The approach that we adopt will depend on the client’s instructions and our clients have direct control over our approach. *Whilst a client subject to a “no win no fee” agreement will not have to pay our fees until and unless they achieve a successful outcome, the client is still liable to pay disbursements and barrister’s fees throughout the course of the matter. Whether we can offer a “no win no fee” agreement will depend on the facts and circumstances of each case.

*Whilst a client subject to a “no win no fee” agreement will not have to pay our fees until and unless they achieve a successful outcome, the client is still liable to pay disbursements and barrister’s fees throughout the course of the matter. Whether we can offer a “no win no fee” agreement will depend on the facts and circumstances of each case.

There Are Strict Time Limits That Apply For Contesting or Disputing a Will, So Don’t Delay! 

In NSW, a family provision claim must be commenced within 12 months from the date of the deceased’s death, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time.
If you have an inheritance issue and want an expert to protect your interests seek legal advice as soon as possible and contact Empower Wills and Estate Lawyers now.

You can contact Empower Wills and Estate Lawyers expert lawyers Sydney by calling us on 1300 414 844.

We offer flexible fee structures tailored to out clients circumstances and in some circumstances offer “no win no fee” agreements.

Frequently Asked Questions on Contesting a Will in NSW

The process to obtain a copy of the deceased’s will depends on the circumstances. 

A person named as a beneficiary in a deceased’s will and who knows the identity of the executor may obtain a copy of the will by writing to the executor, who has a duty to provide a named beneficiary with a copy of the deceased’s will.

A person who believes they may be named as a beneficiary but do not know the identity of the executor, may need to conduct online or locality searches to identify the identity of the executor. Once the executor has been identified, the person may write to the executor to ask whether they are a named beneficiary.

A person who is not a beneficiary or family member may face challenges in obtaining a copy of the will and may have to wait until probate is granted, at which time the deceased’s will is considered a public record.

If the dispute can be resolved through negotiations and mediation the parties may be able to reach a resolution and settle the matter outside of court. This may obviate the need for court proceedings. Whether a dispute can be resolved without court intervention will depend on the facts and circumstances of the case and factors including each party’s willingness to reach agreement.

In other cases, the facts and circumstances are such that the matter may need to proceed to court. In these cases, you should seek legal advice before commencing proceedings. In some circumstances, including where you commence court proceedings and are ultimately unsuccessful, or where you unreasonably refuse another parties offer to settle, the court may order that you pay one (or more) of the other parties’ costs. Costs in will disputes can be significant and can often exceed $150,000 or more.

If a person wishes to contest a will and engages a lawyer (and barrister) to represent them, the person will need to fund their own legal representation and the cost will depend on the legal representative’s fee structure and the terms of the costs agreement between the client and the legal representative.

The lawyer (and barrister) may charge the client for work on an ongoing basis or may offer a ‘no win no fee’ arrangement where the client is not required to pay the costs of the lawyer (but will still be required to pay the cost of a barrister and disbursements) unless and until a successful outcome is achieved.

In some circumstances, for instance, if you are ultimately successful, the court may make an order (known as a ‘costs order’) that the deceased’s estate and/or a losing party reimburse you for some of your legal costs. There is no guarantee that your costs will be paid from the deceased’s estate.

In some circumstances, you may be ordered to pay one or more of the other side’s legal fees. 

Cost implications in succession claims can be complex and for that reason require expert legal advice.

The Succession Act 2006 (NSW) does not require a claimant to reside in the same state as the person who’s will you are contesting or challenging. Instead, the eligibility requirements relate primarily to the relationship between the claimant and the deceased, rather than the geographical location of the claimant. 

Though there can be cross-jurisdictional issues in relation to the assets themselves which often require further consideration. 

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