Can I challenge an estate handled by the NSW Public Trustee?

Published 08 May 2018

Author: Richele Nelsen

The NSW Public Trustee & Guardian office acts as an independent and impartial Executor, Administrator, Attorney and Trustee for the people of NSW. They offer independent legal services but also handle intestate cases, currently administering around 2,000 a year.

It may seem intimidating to challenge the NSW Public Trustee if an estate passes to their control and you disagree with the terms of the Will - but with legal guidance, it's winnable.

What kinds of cases does the NSW Public Trustee administer?
While the NSW Public Trustee handles a range of cases as part of their legal services, their primary function is to administer an estate if there is no one else available to do so. This occurs when:

  • A Will doesn't specify who the Executor is.
  • A Will doesn't name any beneficiaries.
  • An existing Executor asks the NSW Public Trustee to take over their role.
  • Someone dies without a valid Will.

 

Who can challenge an estate provision in NSW?
Regardless of whether a Will exists or not and who is mentioned in it, certain people are eligible to contest based on their inherent right to adequate provision defined in the Succession Amendment (Family Provision) Bill 2008.

These eligible people include:

  • A legal spouse/de facto partner.
  • An ex-legal spouse or partner.
  • Children.
  • A person who was, at any particular time, proven to be wholly or partly dependent on the deceased, and at any time a member of the same household.

 

What grounds do I have to challenge an estate?
The NSW Public Trustee is legally treated in the same way as an individual trustee. As such, you are able to challenge the Will's validity or the provisions made in local court.

We mentioned the eligibility of certain people to contest a Will based on their right to family provision; other parties can also challenge an estate administered by NSW Public Trustee based on either the Will's validity or construction.

A claim against the Will's validity suggests:

  • The Will writer's testamentary capacity was legally or medically compromised.
  • The writer may have been subjected to undue third-party influence.
  • The Will doesn't meet legal requirements; for example, it may have been signed without the presence of a witness.

Challenging the Will's construction means you're questioning the document's wording as confusing or ambiguous, making the provisions within open to interpretation.

If you want to challenge an estate handled by the NSW Public Trustee but are unsure about where to begin, start by consulting with an expert solicitor. Gerard Malouf & Partners are accredited legal specialists with years of experience in Will disputes. Contact the team today for a free consultation.

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