Understanding the Common Mistakes When Contesting a Will in NSW

Contesting a will involves several legal considerations and processes. Claimants must be well-prepared to avoid common pitfalls that can jeopardise their family provision claim. By understanding these mistakes, you can potentially improve your chances of a successful outcome and avoid unnecessary legal costs.

1. Missing the Time Limits for Contesting a Will in NSW

One of the most fundamental mistakes claimants make is missing the statutory time limits for contesting a will. In NSW, a person must bring a claim within 12 months from the date of the deceased person’s death unless the Supreme Court of NSW otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time. Therefore, it is important to seek legal advice promptly after a person dies to best ensure the deadlines can be met and your claim is considered.

2. Lack of Sufficient Evidence to Support Claims

Another common mistake is failing to identify and obtain sufficient evidence to support a claim. In NSW, to be successful, a person must demonstrate that they are an eligible person and that they were not adequately provided for under a deceased person’s will. Additional criteria apply to claimants who are not the deceased’s spouse, de facto partner, or child. 

Among other factors, the Court will expect you to establish your relationship with the deceased and demonstrate your financial need. Evidence such as correspondence with the deceased and financial records are often relied upon for those purposes. A lack of evidence will weaken a claim and may result in a claim being dismissed.

3. Failure to Prove Eligibility as an Eligible Person

Not everyone is entitled to contest a will in NSW. Under Section 57 of the Succession Act 2006, only certain individuals, such as the deceased’s spouse, de facto partner, children, former spouse, dependent grandchildren, dependent former members of the deceased’s household, and inter-dependents, may constitute “eligible persons” for the purposes of making a family provision claim (noting that additional criteria apply to claimants who are not a spouse, de facto partner, or child). Failure to establish eligibility can result in immediate dismissal of a claim. A claimant is required to rely on reliable and admissible evidence to establishing their relationship with the deceased.

4. Not Seeking Professional Legal Advice

Navigating the process of contesting a will without professional help should be avoided. Experienced estate lawyers, like Empower Wills and Estate Lawyers, can provide expert legal advice, help identify and gather necessary evidence, and represent you in Court. Legal disputes involving contested wills often require specialised knowledge, and engaging an experienced solicitor can greatly improve your chances of a successful claim.

5. Overlooking the Cost Implications and Potential Legal Fees

Contesting a will can be an expensive process, and claimants often overlook the potential legal costs involved. These costs can include Court fees, the person’s own legal representation, and other expenses associated with litigation (such as barrister’s fees, expert fees etc.). If a person is not successful in contesting the will, the Court may also order them to reimburse the successful party for all or part of their legal fees.

It is important to discuss the potential costs with your lawyer and consider whether the merits of the claim justify these expenses. Failing to accept a reasonable settlement offer can lead to prolonged litigation and increased costs.

Why You Should Consult a Sydney Solicitor to Negotiate with the Executor of the Estate

A person may bring a family provision claim to secure provision (or additional provision) from an estate. Engaging an experienced solicitor to negotiate with the executor and/or beneficiaries of the estate can prevent many common mistakes. An experienced solicitor can help assess the merits of the claim, facilitate dispute resolution, and if necessary, represent your interests in Court. By seeking expert legal advice, you can avoid costly errors and improve your chances of a successful outcome in your family provision claim.

For professional assistance with your estate planning, or making a claim against a deceased estate, contact the experienced estate lawyers at Empower Wills and Estate Lawyers in Sydney, NSW. We can provide the guidance you need to navigate the complex process of contesting a will. Call us on 1300 414 844 for a consultation today.

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Disclaimer: the information in this article relates to NSW law as at the date it was written and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances, needs and objectives.