Will Disputes & Contested Estates

While family provision claims make up a large proportion of estate disputes, other contentious issues can arise after a person dies. Will challenges concern claims that a Will is not valid and should therefore be void. Typical grounds for challenging a Will are:

• Undue influence – a claim that unreasonable influence was exerted over a will-maker so that the provisions of the Will are different to what he or she might otherwise have wanted – generally benefiting the person who exercised the undue influence.

• Fraud – a claim that the Will (or part of it) is a forgery, for example, that the signatures are not authentic, or the Will was not created or authorised by the deceased person.

• Lack of testamentary capacity – a claim that the will maker (the testator) lacked capacity to make the Will when it was executed, for example, where the testator suffered from dementia and was not lucid when his or her Will was made.

Estate disputes can also involve issues regarding the appointment and removal of executors, or the determination of ambiguous terms.

We are experienced estate lawyers and litigators and can deal with a range of estate challenges and contests.

Family provision claims

If you have lost a loved one or member of your family, it can be upsetting to find out that you have been excluded from the Will or left a much smaller share of the estate than you anticipated.

Although some family provision claims can be contentious, some do not necessarily arise due to disharmony within the family unit. It could be that the deceased person simply failed to update an old Will to reflect changed circumstances.

Can I make a family provision claim?

To make a family provision claim, you must be an eligible person. In New South Wales, this includes:

• a current or former spouse of the deceased;
• a person who was in a de facto relationship with the deceased at the time of their death;
• a child of the deceased;
• a child of someone in a domestic relationship with the deceased;
• a person who is, or was at some time, dependent on the deceased:

• who is the grandchild of the deceased; or
• who is or was a member of the deceased’s household; or
• a person who was in a close personal relationship with the deceased at the time of their death.

Making a family provision claim

In addition to the eligibility criteria, there are time limits within which to bring a family provision claim. If you wish to make a claim, we can assess your circumstances to determine your eligibility and advise on the likely prospects of success, so you can make an informed decision.

If you decide to proceed, we will notify the executor of the estate advising them of your intention to make a claim. If necessary, we can also seek orders from the court to prevent the distribution of any of the deceased’s assets until your claim is resolved. This is an important step as it ensures that funds are not distributed and spent by beneficiaries before your claim has been finalised.

We will need to gather evidence to support your claim. This will include details of your relationship with the deceased, your financial situation and needs, and the assets of the other beneficiaries.

Once your evidence is ready, the executor will be contacted for settlement negotiations. This means that your claim might settle before going to court. While this usually saves a lot of time and money, it is important to ensure that an out-of-court settlement provides a fair and reasonable outcome in the circumstances.

If the matter proceeds to court, it is usual practice for the parties to be ordered to attend a mediation. It is only if early settlement discussions and mediation fails that your matter will be heard in court.

How will the Court make a decision?

In determining whether to make orders in favour of a person contesting a Will, the court will consider a range of factors including:

• your financial situation;
• the financial situation of other beneficiaries;
• your future needs;
• any mental or physical conditions or disabilities;
• any obligations the deceased owed to you.

Can I make a family provision claim if there is no Will?

If a person dies without a Will (referred to as dying intestate), their estate is distributed according to a formula prescribed by legislation. This however will not prevent an eligible person from making a claim on the proposed distribution of an intestate estate.

At every stage of contesting or challenging a will, it is important to have sound legal advice from an experienced professional. We are skilled negotiators and advocates and will work with you to avoid costly court fees wherever possible while ensuring a fair resolution on your behalf.

If you need assistance, contact one of our lawyers at [email protected] or call (02) 4970 5050 for expert legal advice.