It is a big decision to contest a Will. This article looks at what is involved from an emotional and financial perspective.
- Have you been left out of a Will?
- Do you think a Will has resulted in unfair treatment for you and your family?
The general principle remains that a person has the freedom to give their property to whoever they like when they die.
However, a Court may in some circumstances change the terms of a Will and decide that a person may receive a portion or a greater portion of an estate.
In NSW a person wishing to make a family provision claim against an estate has 12 months only from the death of the deceased to do so.
Cases that have been before the Court show:
- There is a general duty to a spouse to ensure they are secure in the matrimonial home, can live as they are accustomed and to have some money for future needs.
- There is no obligation to treat children equally in a Will.
The Court has many issues to consider, a few of the fundamental factors are:
- whether a person contesting a Will (“Claimant”) is entitled to do so by law, for example a spouse or child;
- whether adequate provision has been made by the Will for the Claimant;
- the Claimant’s current need for accommodation, recurrent medical expenses, payment of debts and future financial needs;
- how big the estate is, the smaller the estate the less to go round and vice versa.
- Communication is key. Can you talk about it with the executor/s of the Estate to share how you feel? See if you can find any common ground.
- Are you entitled or eligible to contest the Will – see section 57 of the Succession Act 2006 for eligible persons or http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/sa2006138/s57.html;
- If you are a spouse of the deceased, have you been left with a home, adequate financial resources and a buffer for the future?
- Are you in financial difficulty or do you have ongoing health issues or a disability that would benefit from additional funds?
- How big is the estate? if it isn’t particularly large, it may not be worth contesting the Will.
Emotional Cost to you and your family
- Consider the possible emotional upheaval contesting a Will may cause on your extended family.
- Is your relationship with family more important than the unequal distribution of the deceased’s estate?
- Conflicts once they start, can last a lifetime with rippling effects on other family members including children.
Financial Cost to you
- If you decide to obtain advice about contesting a Will, a lawyer with experience in this area will need to assist you. The executors of the Estate of the deceased will also need a lawyer. Legal fees mean less estate money to be divided between the beneficiaries.
- If you contest a Will, the deceased’s Estate may pay for a portion of your legal fees but usually not if you lose in Court.
- Hopefully once lawyers are appointed and it is considered you have a valid claim against the estate, a solution can be negotiated with the Estate’s lawyer and the matter need not go to Court. There needs to be time to negotiate though and if a lawyer is approached close to the expiration of 12 months from the date of death, Court proceedings need to commence immediately to avoid being out of time.
- If you decide after legal advice to contest a Will in Court, the initial steps are:
- a document called a Summons must be filed in the Supreme Court of NSW. There is a fee charged by the Court of $1,123 (as at March 2019).
- A detailed Affidavit by you must be prepared and lodged with the Summons. You must put all your ‘cards on the table’ by providing, among other things:
- Full details of your current financial situation including income, liabilities and monthly expenditure,
- financial details of your spouse or partner,
- details of any mental and/or physical disabilities you have,
- any contribution you have made (financial or otherwise) to the deceased while he or she was alive,
- any financial assistance made to you by the deceased during his or her lifetime,
- any evidence of the intentions of the deceased during their life as to who gets their estate when they die; and
- details if you were financially looked after wholly or partly by the deceased before the person’s death.
- It is a costly exercise to prepare these initial Court documents.
- This is only the start, the Estate has to lodge documents in response with the Court, barristers are appointed to assist solicitors in Court on both sides, the matter has to go to mediation and, if there is no resolution, a Judge will make a decision after the parties give evidence in Court, are cross examined and witnesses are also called if need be to provide evidence.
- Some lawyers offer no win/no fee deals to attract business. In our view this encourages court proceedings, as a win is what is required for payment of fees.
Take away points:
- There is no requirement for a Will to provide equally between children. However depending on the circumstances, it is often preferable to do so to avoid issues between them.
- It is a big decision to contest a Will and can cause years of family disharmony.
- The likelihood of successfully contesting a Will, depends on whether the Claimant has been adequately provided for by the deceased, based on the Claimants own circumstances and the size of the estate.
- If you think you have a reason to contest a Will, see a lawyer who has experience in the area of family provision.
- Don’t leave it for too long to see a lawyer if you want to get advice. If you do, there will be less time to negotiate with the Estate. A Court action has to commence within 12 months from the death of the deceased.
- This is a complex area with many variables. Each situation has to be looked at separately on its own merits.
This article is general in nature and cannot be relied upon as legal advice.