Contesting a Will
If you aim to contest a Will, you may have many questions about how to go about this. Here we answer some of the most common questions:
Is There a Time Limit on Contesting a Will?
If you feel you have been left out of a Will, you need to consult a Succession Act lawyer quickly. In NSW, the time limit on challenging a Will has changed recently – you must contest a Will within 12 months of the date that the Will-maker passed away.
When is it Possible to Contest a Will?
A person making a Will (the 'testator') has the right to distribute their estate as they see fit. However, there is legislation in place in NSW to protect those who feel the deceased had a 'moral responsibility' to provide for them. It is possible to contest a Will when you feel the deceased has failed in meeting this responsibility when making their Will.
Who Can Challenge a Will?
Social changes in recent years have seen increasing numbers of people with more complicated family structures (e.g. subsequent marriages). Under the Succession Act 2006 in NSW, contesting a Will is not limited to spouses and children – friends or relatives who believe they have not been sufficiently provided for are also entitled to contest a Will.
This includes former spouses, de-facto partners, same-sex partners and any other dependants (wholly or partly dependent) including grandchildren and those living in a close personal relationship with the deceased. In order to be successful with a Will dispute, you will need to prove to the Court that adequate provisions were not made for your maintenance, education or advancement in life.
What Will the Court Look at When a Will is Challenged?
The criteria used by the Court in NSW to assess your rights when contesting a Will include:
• Is the Will 'grossly unfair'?
• Have you been left out of the Will when you should have been provided for?
• Were the testator's intentions clear? Did the testator have the mental capacity to understand what he/she was doing?
• Have you been excluded from the Will when you were either partially or fully dependant on the deceased?
How Much Does it Cost to Contest a Will ?
The total cost to contest a Will depends on when the claim is resolved – after a long drawn out application, which is decided by the Supreme Court, or by negotiation or mediation before the Will dispute reaches Court. As each case (and family) is different, once you have discussed the details with us we will have a much better idea about the legal costs involved to contest a Will.
Will I Have to Go to Court to Contest a Will?
Where possible, Will disputes are resolved through a settlement agreement or mediation. This prevents the matter going to Court and therefore reduces legal costs, brings earlier resolution and preserves family relationships.
In some instances, however, contesting a Will in Court cannot be avoided.
Challenging a Will in Sydney and NSW
If you are thinking of contesting a Will, contact us now and speak to one of our expert solicitors on 02 9281 5088 or book a consultation.