We do not encourage clients to contest a Will unless there is good reason to do so. It is a costly exercise and the financial benefits may not be worth the emotional toll.
We act for beneficiaries listed in the Will of a deceased person who believe they may not have been provided for adequately in the Will or others who may not have been provided for at all.
We also act for executors of an estate of a deceased person, who have a claim or possible claim by a person or persons against the estate.
Who can contest a will in NSW?
Only an eligible person of the deceased can challenge the terms of a Will.
The NSW Succession Act 2006 (section 57) says that an eligible person is any of the following:
- A spouse of the deceased person at the time of the deceased’s death;
- A person living in a defacto relationship with the deceased at the time of his/her death;
- A child of the deceased;
- A former spouse of the deceased;
- A person who was at any time wholly or partly dependent on the deceased person AND who is a grandchild of the deceased OR WAS a member of the household of which the deceased person was a member;
- A person who was living in a close personal relationship at the time of the deceased person’s death.
How much time is there to contest a will?
An application to the Court must be made not later than 12 MONTHS after the date of death.
Do we have to go to Court?
If there is time before the 12 months has elapsed from the date of death to make a claim, we will get full instructions from you and make enquiries with the solicitor acting for the estate, if need be, of what the estate is worth.
Ideally, we will give preliminary advice and make recommendations to negotiate with the executor of the estate to avoid going to Court.
We much prefer that these matters are dealt with without the intervention of the Court and that common sense prevails for all parties.
Sometimes, there is no time to negotiate an outcome as the 12 months is due to expire, so a hurried application to the Court is required to reserve your position.
What happens if the matter has to go to Court?
Each state and territory of Australia has its own laws regarding family provision or Will disputes. It has to be worked out which state or territory is the correct one to commence the Court case. Usually it is clear, but not always for example, if the deceased lived in South Australia and had assets in New South Wales, does the Court case commence in South Australia or New South Wales?
Documents to start a Court case
We deal with NSW matters and the following documents need to be lodged at the Supreme Court of NSW by the eligible person:
- A Summons applying to the Court for more of the Estate (“the Plaintiff”), no later than 12 MONTHS after the date of the death. The Court’s filing fee is $1,123 – as at September 2018.
- A detailed Affidavit by the eligible person containing information:
- Summary of the Plaintiff’s assets and liabilities;
- Income details;
- Expenses details;
- Real estate and listed purchase and sales over last 3 years;
- Gifts by the Plaintiff to others over last 3 years;
- Details of companies and trusts owned or controlled by the Plaintiff;
- Any physical, intellectual or mental disability of the Plaintiff;
- Any contribution financial or otherwise by the Plaintiff towards the deceased before or after their death;
- Any gifts or contributions by the deceased person to the Plaintiff before or after their death;
The estate has to lodge an affidavit or affidavits in Court with:
- Copy of the Will and probate;
- The nature of the assets and liabilities of the deceased at the date of death;
- Estimated value of the estate;
- The name of all of the eligible people and people entitled to the estate pursuant to the Will;
- Replying to the Plaintiff’s affidavit, if suitable to do so.
Almost all Court matters go to mediation first. A mediation is where you sit around a table with the executors of the estate and their lawyers, with your lawyer and usually a barrister and have a mediator sit with you all and try and come to a solution.
This is the last chance you have to settle the matter on your terms – with the assistance of your legal team – before a Judge makes a decision for you.
Finally a Judge
The matter will be heard in a Court room by a Judge. You will be likely to give oral evidence as will the executors in the Court room. The Judge will hand down his or her decision sometime after the Court case.
This is what happens in a nutshell, there is lots that happens in between.
Please note: This is only general information and should not be relied upon in any way.
Get in Touch
Contact us today by phone or email to discuss your will or family provision situation.