Should I pursue a will dispute if my claim is unlikely to succeed?

Published 16 Jan 2018

Author: Garbis Kolokossian

Will disputes can be a cause of tension between a deceased's surviving loved ones, but contesting a will is a crucial part of a fair succession system in NSW.

But should you proceed with a claim that is unlikely to succeed? The obvious answer would appear to be no, although it's important to discuss your case with an experienced contesting wills lawyer before making any decisions.

Succession law can be complex and while you may believe you don't have a good case, there could be reasons why your claim is stronger than you first suspected. Here are some common misconceptions we encounter when advising clients:

1. I don't think I'm eligible

Only eligible people can make a family provision claim. Most people know that spouses and children are entitled to contest a will, but other individuals may also be eligible under certain circumstances, including:

  • Grandchildren;
  • Close friends or carers;
  • Unrelated dependants.

The Succession Act 2006 provides specific criteria for these claimants, such as living arrangements and the nature of their relationship with the deceased. Before abandoning a claim, check whether you are an eligible person within the Act.

2. I'm estranged from the deceased

Estrangement is a common factor that prevents people from pursuing a family provision claim. Adult children of a dead parent, for example, may feel they are unlikely to succeed in court if they had no contact with the deceased in the years prior to their death.

But estrangement isn't necessarily the end of a claim. Judges take a number of other issues into account, such as who was responsible for the hostility, whether efforts were made to reconcile and the financial needs of the plaintiff.

3. I'm claiming outside the time limit

Family provision claims must be made within 12 months from the date when the deceased passed away, which can discourage claimants who want to pursue their case after the deadline has expired.

Nevertheless, the courts will allow extensions on the time limit for plaintiffs who can show a justifiable reason why they delayed their claim. For example, the individual may not have learned of their loved one's death until a year had already passed. 

Our Difficult Case Policy

At Gerard Malouf & Partners, we have introduced a Difficult Case Policy that means challenging cases with a lower chance of success are brought to the attention of our management team.

We will then take all the necessary steps to ensure the claim has the best chance of a favourable outcome for our clients. Contact us today to learn more about our specialist services in this area.

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