When someone passes away, their will outlines how their estate should be distributed. However, if you believe you haven’t received what you expected or feel the will doesn’t fairly reflect your relationship with the deceased, you may have legal options. In New South Wales (NSW), there are specific laws and processes in place to address concerns about a will.
Here’s what you need to know if you find yourself in this situation:
1. Understanding the Will
Before taking any action, ensure that you fully understand the will. Sometimes, the distribution may not be as expected due to specific provisions, conditions, or misunderstandings about the deceased’s intentions. It’s important to read the will carefully, as some assets or inheritances might have been left to someone else or placed in a trust.
If you haven’t been formally informed about the contents of the will or don’t have access to it, you can request a copy from the executor or the solicitor handling the estate. Executors are legally obligated to share the will with all beneficiaries, so they must provide a copy when requested.
2. Contesting a Will: Family Provision Claims
If, after reviewing the will, you believe you haven’t received a fair share, or the will doesn’t reflect the deceased’s obligations to you, you may be able to challenge it by making a Family Provision Claim.
Under the New South Wales Succession Act of 2006, certain people are entitled to apply to the court for a larger share of the estate, provided they can show that the will doesn’t make adequate provision for their proper maintenance, education, or support. Eligible people include:
- Spouses (married or de facto partners)
- Children of the deceased, including adult children
- Former spouses (in some cases)
- Dependants or those who were financially dependent on the deceased
Within a year of the death, a Family Provision Claim must be submitted to the Supreme Court of New South Wales. If you miss this deadline, it may be very difficult to challenge the will, although in some rare cases, the court can extend the timeframe.
3. Grounds for Contesting a Will
There are several reasons you might have to contest a will or make a Family Provision Claim, including:
- Failure to make adequate provision: If the will does not provide for your financial needs, and you can demonstrate that you were financially dependent on the deceased or had a close relationship, the court might increase your share.
- Undue influence or fraud: If you believe the will was made under duress, coercion, or manipulation (i.e., someone pressured the deceased into making changes to the will), this may be grounds to challenge it.
- Lack of mental capacity: If the deceased did not have the mental capacity to make or alter their will, for example, due to illness or incapacity, you may challenge the validity of the will.
- Inconsistent provisions: If you were a beneficiary in previous versions of the will or were verbally promised an inheritance, and the final will significantly changes that, it could form the basis of a claim.
4. The Process of Contesting a Will
If you decide to contest the will or make a Family Provision Claim, here’s the general process you can expect:
- Initial Consultation: Consult with a family lawyer experienced in will disputes. They can assess your case and determine if you have grounds for contesting the will.
- Filing the Claim: Your lawyer will file a claim with the Supreme Court of NSW. The claim will detail why you believe the deceased did not make adequate provision for you.
- Negotiation and Mediation: Many estate disputes are resolved through negotiation or mediation, rather than a full court hearing. The parties involved (the executor, other beneficiaries, and their legal representatives) will discuss the issue and may reach a settlement without going to trial.
- Court Hearing: If the case cannot be resolved through negotiation or mediation, it will proceed to a court hearing. The court will consider all the evidence, including the deceased’s intentions (as expressed in the will and other documents) and your personal circumstances.
- Court Decision: The court may grant you a greater share of the estate if it determines that the will doesn’t adequately provide for you.
5. Costs of Contesting a Will
Contesting a will can be expensive. Legal fees can add up quickly, especially if the case goes to trial. In many cases, the court may order that the legal costs be paid from the estate. However, if the claim is unsuccessful, you might be required to pay the costs of the executor and other beneficiaries.
Before proceeding, ensure you understand the potential costs involved and discuss these with your lawyer. They can help assess whether it’s financially viable to move forward with a claim.
6. Alternative Dispute Resolution
It’s often recommended to attempt alternative dispute resolution methods, such as mediation or negotiation, before taking the matter to court. Mediation can help all parties reach a settlement without the time, expense, and stress of a formal court hearing. In many cases, a mediator can help you work out an agreement that is fair and acceptable to all parties.
7. Seeking Legal Advice
If you find that you didn’t get what you expected from a will and are considering contesting it or making a claim, it’s important to seek legal advice from a qualified solicitor. A lawyer specialising in wills and estates will be able to assess your situation, provide guidance, and represent you in any legal proceedings.
Contesting a will is a serious legal matter and can be emotionally challenging. Understanding your rights and the process involved is crucial if you believe the will doesn’t reflect a fair distribution of the estate. Take your time, seek professional legal advice, and consider all available options to ensure that your interests are properly represented.
