The best Will dispute lawyers in Sydney can help people who believe they received unfair provision in a Will. These people are beneficiaries under a Will which contains how much and what beneficiaries will receive. Some beneficiaries in a Will, especially blood relatives of the deceased, expect a significant amount of inheritance.
Often, these people challenge or contest a Will if they feel that it is inadequate. People often interchange the terms ‘contesting a will’ and ‘challenging a will’. Contesting a Will usually involves quantum or seeking a larger share of the deceased estate while. On the other hand, challenging a Will questions the validity of a Will.
Only an eligible person can contest a will.
A person may dispute a Will for various reasons. Disputes may arise if the Will does not make adequate provision for certain people. Only an eligible person, as defined by the relevant legislation, can contest a Will. When referring to the testator, the last Will is the most recent one made by the person making it.
Why Do People Dispute Wills?
The main reasons why an individual may find a Will to be inadequate or invalid include:
1. Testator’s Lack of Testamentary Capacity
A person can challenge a Will if they believe the deceased lacked testamentary capacity, was under undue influence, or if suspicious circumstances exist. Suspicious circumstances can cast doubt on the testator’s knowledge and approval of the Will’s contents.
Testamentary capacity is a key requirement for a Will to be valid, legitimate and binding. It refers to the person’s mental ability to fully understand the Will that they are making, or amending. Moreover, the testator must have a sound mind at the time of executing the Will. This is because if it is later found that the testator had any mental incapabilities or disorders, the validity of the document will be severely impacted in the future.
People often challenge Wills under these grounds because some testators do not understand the gravity of the consequences of an invalid Will. The court will consider the circumstances surrounding the preparation of the Will, and if any, the financial position and financial circumstances of the claimant when determining a family provision claim. The court has discretion to make a family provision order based on the circumstances of each case.
There are several factors that can be considered when assessing whether a person has testamentary capacity when making a Will. It is said that the testator (maker of Will) has testamentary capacity if they comprehend:
- That they are executing a Will, and comprehend the effect of doing so;
- The nature and extent of their estate or property;
- Whether they have any moral obligations towards family, and/or friends or any other external parties.
2. Inadequate Provisions
Contesting a will usually involves seeking proper maintenance or adequate provision for family members, children, or stepchildren. Family members, beneficiaries, executors, and co-executors are usual parties in such proceedings. IF they believe that they received inadequate provision, they must file a family provision claim.
The process for making a family provision claim may involve mediation or settlement before court proceedings commence. If a Will is found invalid, the court may grant probate for an earlier valid Will or declare the testator died intestate, and the administration of the deceased person’s estate will follow intestacy rules.
The administration process may involve calling in assets, including money, paying liabilities, and distributing the estate. Costs are generally deducted from the estate or settlement.
Who Can Contest a Will?
Only an eligible person, as defined under section 57 of the Succession Act 2006 (NSW), can contest a will in New South Wales. Disputing a Will can include either challenging the validity of a Will or contesting a Will. When a person contests a Will, they feel that they have not been provided for adequately.
If you are looking for Will dispute lawyers to contest a Will in South Wales, you need to first check if you are an eligible person. Section 57 (1) of the Succession Act 2006 (NSW) lists the following ‘eligible persons’ who can make a claim on the estate of the deceased in New South Wales. These are:
- Spouse of the deceased at the time of the deceased’s death
- Child of the deceased
- De facto partner of the deceased at the time of deceased’s death
- Former spouse of the deceased
- A person who was at any time wholly or partly dependent on the deceased, and additionally resided in the same household as the deceased; and
- A person who had a close personal relationship with the deceased at the time of their death
What Does the Succession Act 2006 Say?
About Family Provision Claims
It is important to go over the eligibility criteria with your Will dispute lawyer to identify whether you can make an application or not. Once you have determined your eligibility, you need to apply for a Family Provision Claim with the help of your solicitor. Family provision claims can be made under the Succession Act 2006 in New South Wales.
There are certain time limits that apply when making a Family Provision Claim. For example, in NSW, you have 12 months from the testator’s date of death to dispute the Will. Each State and Territory in Australia has different deadlines for contesting a will, so it is advisable to seek legal advice as early as possible to protect your position.
Time Limits
- In Victoria, the Australian Capital Territory, and Western Australia, the applicant has six months from the date of probate grant to contest the Will.
- In the Northern Territory, the claimant has 12 months from the date of the Grant of Probate for the same.
- Tasmania has a short time limit, with the applicant having only three months from the Grant of Probate to file a Family Provision Claim.
About Testamentary Capacity
If the Supreme Court of NSW determines that the deceased did not possess testamentary capacity at the time of executing the Will, the court will “set aside” the Will. According to Section 80 of the Succession Act 2006 (NSW):
The Court may, on application by any person, make an order authorising a Will or part of a Will to be made or altered, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity, or a Will or part of a Will to be revoked on behalf of a person who lacks testamentary capacity.”
What is most important in this condition is providing evidence that the person making the Will (the Will maker or testator) lacked the mental capacity at the time they drafted and executed the Will. For this reason, you will need the support of experienced Will dispute lawyers and estate planning specialists.
What Can Will Dispute Lawyers Help With?
Will dispute lawyers at JB Solicitors know that in considering such cases, the courts examine the entire circumstance. To make your case, our expert lawyers can help with:
- Speaking with medical staff who were assisting the deceased at the time;
- Reaching out to the estate planning solicitors who helped the deceased with his/her Will. In doing so, our solicitors will check if the estate planning specialists put in place any measures that could determine if the Will maker had testamentary capacity;
- Receiving opinions from the head doctor who was treating the deceased at the time;
- Speaking to all close associates of the deceased who would meet the deceased frequently at the time.
Dispute lawyers draft and file all necessary legal documents, conduct thorough investigations, gather relevant evidence, and interview witnesses and experts to build a strong case. They can also negotiate terms and reach a settlement without formal proceedings, often aiming to resolve conflicts efficiently and cost-effectively.
In certain circumstances, if there is no valid Will, an application for letters of administration may be required to manage the deceased person’s estate.
How Much Will You Have To Spend?
This is probably one of the most important things to ask yourself when you want to dispute a Will. We believe that transparency is essential to building trust and ensuring our clients feel confident throughout the process. That’s why we provide a clear understanding of all legal costs from the very beginning, so you know exactly what to expect as your matter progresses.
Depending on the complexity of your case and all the circumstances involved, we at JB Solicitors may offer fixed fee arrangements. Our goal is to provide flexible, affordable legal solutions tailored to your needs, whether you are contesting a Will, seeking further provision, or involved in other estate disputes.
Check out our fixed fee arrangements for Wills and Estate Planning matters here.
Our Legal Expertise Speaks for Itself
With a proven track record of success in Will disputes, estate litigation, and Will contests, our team of experienced lawyers has a deep understanding of the Succession Act and the legal processes involved. We take the time to understand your unique situation, working closely with you to develop a strategy that addresses your concerns and maximises your chances of a successful outcome.
If you have questions about legal fees, the dispute resolution process, or your rights in relation to a deceased person’s estate, don’t hesitate to reach out. JB Solicitors’ Wills and Estate Lawyers, we are dedicated to guiding our clients through every step of the process with clarity, compassion, and expertise. Contact us today to schedule a consultation and take the first step toward resolving your estate dispute with confidence.
Will Dispute Lawyers: JB Solicitors
The expert team of Wills and Estate Planning specialists at JB Solicitors have a splendid reputation of helping clients reach their desired outcomes when contesting Wills.
We can advise you on the procedures, eligibility requirements, and time limits for each jurisdiction in Australia. Further to this, we will lead the legal process of contesting the Will by helping you file the Family Provision Claims and provide court representation wherever required.
This is a truly complex matter, and we know the kind of stress that this adds. You must be reeling from the grief of losing someone, and adding to that is the stress of dealing with an unfair Will. So let our compassionate solicitors handle it with you.
Contact the best Will dispute lawyers today and discuss your matter.
