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Contesting a will in New South Wales

Do you believe that you have been unfairly excluded from a will, or not given the fair share of an inheritance you deserve? Whether you think the testator was under undue influence of a third party, or the deceased chose to illegally or unfairly exclude you from their will, you have rights.

In NSW, the process for contesting wills can lead to mediation and a settlement out of court, or a complete court case. You’ll need legal counsel who can represent you and your interests as you contest the will, and help you maximise your settlement. The experienced team at Gerard Malouf & Partners can help you receive the inheritance that is rightfully yours.

How do you make a claim on a deceased person's estate?

Legally, a testator is required to make provision for eligible persons in their will. If the deceased person did not distribute their estate in such a way as to meet this mandate, you can contest the will. Contesting a Will in NSW must be done according to specific guidelines.

To start, your best option is to contact a will disputes lawyer who is experienced in contesting wills in NSW. There are a series of steps you must go through to correctly contest or challenge a will, and you’ll need to be able to provide the correct evidence to achieve a settlement in your favor.

Once you have gathered evidence that proves you have a valid claim and are a person who is eligible to contest or challenge the will, your attorney can try to settle the case out of court through mediation, and get you the inheritance you deserve. Alternatively, they can take the case to the court and attempt to achieve a higher settlement there. Part of the process depends on whether you are contesting the will or challenging it.

Contesting vs challenging a will in NSW

Contesting a will assumes that the will itself is valid, except for the terms of splitting up the inheritance. You’re simply contesting the terms of the will and laying claim to a portion (or a bigger portion) of the estate. In such cases, you need to prove you are an eligible person, and prove your need for a provision to be made for your support, or that promises were made to you that were not reflected in the final will.

Challenging a will is usually done if a new will was made while the testator is thought to have been under undue influence. This claims the will itself is not valid due to lack of testamentary capacity, and seeks to have it thrown out altogether. If there is a previous will, it may be reinstated. If the deceased died intestate, NSW succession act laws apply to inheritances and you can proceed with your claim against the deceased person’s estate.

Are you eligible to make a claim on an estate?

Are you wondering who is eligible to contest a will in NSW? In most cases, contesting a will can only be done by an eligible person. In NSW, an eligible person is defined as:

  • A current or (in some cases) ex-spouse of the deceased
  • A domestic partner (person who was living in a de facto relationship with the deceased)
  • A “natural” or adopted child of the deceased
  • A dependent grandchild of the deceased
  • Another person who was was at any time a member of the deceased’s household and at that same time wholly or partly dependent on the deceased
  • A person who had a close personal relationship with the deceased and was living with them at the time of the deceased person’s death
  • A person who helped add to the value of the deceased’s estate
  • Someone to whom the deceased made promises about an inheritance

Your compensation lawyers can help you file your family provision claim application and gather the evidence you need to support your claim and status as an eligible person.

You can make a claim even if:

  • You are not directly related to the deceased, as long as you fall under another definition of an eligible person
  • You are already named in the will, but you feel the provision made for you was too small or unfair
  • You are representing a minor child for their inheritance
  • You have been “disowned” by the testator
  • You have had no contact with the testator or other family members for years
  • You didn’t know the testator had passed away for an extended period of time

Getting legal advice about contesting a will in NSW can help prepare you for the claims process.

How the process of making a claim on an estate works

In NSW, if you are an eligible person and you wish to contest a will, you must do so within 12 months from the date of the testator’s death. In some cases, the court may make an exception if you were unaware of the death of the testator for longer than 12 months.

As an eligible person, you will likely be making a family provision claim. The court will consider many factors when judging whether or not you are eligible to receive an inheritance due to a contested will. They will look at:

  • Your age, your current and future financial circumstances, and whether you are adequately supported
  • The relationship between you and the deceased, and whether the testator ever supported you
  • The value and location of the estate, and whether or not you contributed to its value
  • Whether the deceased person owed you any obligation or made promises to you
  • Whether you have any physical, intellectual or mental disabilities that prevent you from providing for yourself
  • If any other person besides the deceased is responsible and able to support you
  • What other claims are being made against the estate and how strong those applicants’ claims are

It’s advisable to file a family provision claim as soon as you learn about the terms of or existence of a will that doesn’t treat you favourably. You’ll need your attorney to file a brief to ensure that the assets of the estate cannot be distributed until your claim is settled.

While you could still bring a case under some circumstances after an estate has been distributed, your chances of recovery are slimmer as other beneficiaries may already have spent or disposed of their inheritance and there could be nothing left for you to recover.

This is why it is so critical for you to enlist a will disputes law firm and start proceedings to protect your inheritance as soon as possible. At Gerard Malouf & Partners, we can move quickly to ensure that nothing from the estate is being disbursed and help gain a clear picture of the value of the estate.

Once the value of the estate is ascertained, and you’ve made a clear claim for adequate provision, we can work out what sort of percentage of the estate or flat dollar amount you are entitled to as an inheritor. Then negotiations can begin with the other parties to help achieve your goal: Getting the inheritance you are owed. Learn more about a recent contested will case where we helped our client win a quarter of the estate through a family provision claim.

If you are not merely contesting, but actually challenging the will, there are a few more steps. You will have to prove that the testator was under undue influence at the time that they made their (most recent) will. This may require medical testimony as well as witnesses who can support your claim.

If a challenged will is thrown out, expect a search for other, pre-existing wills to be made. If it appears that side from the invalidated will, the deceased person died intestate (without a will), then you can make a family provision claim and expect a mediation or court appearance to help settle on who gets what from the estate between you and any other eligible persons who file claims.

A lawyer can help contest a will, without going to court

There are many reasons to seek legal advice when you decide to contest a will in NSW. There is a lot of paperwork and documentation that will have to be filled out, and getting even a single line on a form wrong can stall your family provision application.

If you go into mediation, it can be a huge benefit to have a calm, clear-headed third party in the room advocating on your behalf. Everyone involved will likely be struggling to come to grips with the passing of the deceased person. Emotions and tempers can run high. With an attorney on your side, you can sit back and let us handle the uncomfortable negotiations and avoid unnecessary animosity.

Of course, it’s not up to the executor to have the final say in the contesting of a will. In many cases, the executor isn’t an unbiased party. Even if you successfully mediate an agreement, the court will have to approve it before disbursement of funds. This protects you against an executor who is merely looking out for their own or their family members’ interests.

If your case goes to court, having seasoned legal counsel on your side is even more important. Our experienced estate dispute lawyers can put together your case in a highly organised fashion, ensure all materials provided clearly support your claim, and layout a logical progression of circumstances that show you are fully entitled to your inheritance from the estate.

You could receive a substantial inheritance by contesting a will in NSW

How much you get from a successful daily provision claim or a court awarded settlement will depend on a range of factors, including:

  • The size and value of the estate
  • How many beneficiaries and applicants are involved
  • How great your need is for the provision
  • How strong your claim is as an eligible person

If the estate is worth a considerable amount, you and one other person are the sole beneficiaries/applicants, and you are contesting the will because the other party got what you feel is the lion’s share. You may end up with a sizable settlement if it is made clear that family provision was neglected by the testator.

Likewise, if you should have been heir to the estate, but were “disowned” by your family, you could still receive your inheritance under NSW law. This is why it is vital to keep track of people in your life who could have a responsibility to you under the law, even if you are estranged. You could have a valid claim and walk away with an estate worth quite a lot of money.

GMP Contesting Wills works on a no-win, no-fee basis, meaning that if you were for some reason to lose your claim, we waive our fee. This means you carry much less risk for legal costs if you choose to contest a will in NSW.

When we achieve a settlement for you, our fee comes out of the awarded amount, so you don’t have to worry about it.

There’s really no reason not to contest a will if you believe you are an eligible person and should have been included, or think you didn’t receive an equitable portion. If you think the testator was under undue influence when they created their latest will, you may have grounds to challenge the will on grounds of mental incapacity.

The main thing to remember is that if you think you have a claim, you should complete the following steps as soon as possible:

  • Contact a qualified estate disputes attorney
  • Have your attorney keep the executor from disbursing the estate
  • File a family provision claim (if appropriate)
  • Gather all information about your finances and your relationship with the deceased
  • Collect medical information and witness statements (if challenging the will)

Your attorney may be able to achieve an early settlement or negotiate a fair settlement through mediation. If all else fails, we can represent you in court.

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