Wills and Probate Disputes

Probate is a court order made by the Supreme Court of New South Wales which confirms that the Will of a deceased person is valid and gives permission to distribute the estate (by the appointed “executor”) in the way described in the Will. As experienced probate lawyers, Szabo & Associates, Solicitors, can help you to apply to the Supreme Court for the grant of probate or to delay a grant if it is a case of contentious probate or a disputed Will.

Contentious Probate and Disputing a Will

A disagreement about the distribution of a deceased’s estate might arise from a feeling that the Will does not leave a beneficiary with what they felt they deserved or were promised. There may even be concerns about the way in which the Will was made. There are several grounds on which a Will may be contested, for example:

  • there is a failure to comply with the legal formalities when the Will was prepared or executed, such as not being signed by the deceased in accordance with the legislation;
  • the Will does not reflect the deceased’s instructions or wishes;
  • there was a lack of mental (“testamentary”) capacity on the part of the deceased when the Will was executed;
  • the Will is not the last Will as a later one has been discovered;
  • the deceased was under duress or there was undue influence from an intended beneficiary when the deceased made and Will; or
  • the Will was procured by fraud (believing a Will has been tampered with is one of the commonest reasons for challenging a Will).

If you believe any of these issues have occurred, you may apply to the Supreme Court contesting the granting of probate. This will halt the estate being administered and assets distributed to the beneficiaries until the issues surrounding the Will have been resolved. Costs may be awarded against an applicant if proceedings are improperly conducted or are considered to be without merit so it is important that probate specialists guide you through the process and the evidence requirements to succeed.

Family Provision and “Unfair” Treatment of Dependants in a Will

A person making a Will (the “testator”) has the right to distribute their estate as they feel fit. However, there is legislation in NSW to protect those to whom the deceased had a “moral responsibility” to provide. “Eligible persons”, such as spouses (including de facto spouses), former spouses and certain other family members, can contest a Will under the Succession Act if adequate provision has not been made for the maintenance, education and advancement of life. Such a “family provision claim” is made in the Supreme Court and must be made within a year of the deceased person’s death.

Contact our Wills and Probate Solicitors Sydney, NSW

At Szabo & Associates, Solicitors, we have many years of experience advising on Wills and probate. If you require advice on any aspect of probate, preparing or contesting a Will, please contact us on 02 9281 5088 or fill in our online contact form.

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