Someone close to you passing away is a challenging situation to come to terms with. It wasn’t easy for you to hear this terrible news, but what may have made things worse is finding out that you have received much less than what you thought you were entitled to in their Will, or you were left out entirely.The following article will discuss this exact scenario and the rights of beneficiaries of a Will in general.
Am I Able To Contest a Will?
A beneficiary is someone listed under the Will who is legally entitled to some share of the estate. One of the most significant rights of beneficiaries of a Will is the ability to contest a will. Contesting a will is applicable in multiple scenarios, which can include feeling as though you are entitled to a more significant amount of the deceased’s estate or even when you have been left out of a will altogether.
If you are in a situation where you need to contest a Will, it is essential to note that the Will must be contested within 12 months from the date of the deceased person’s death.
To make a family provision claim, the person contesting the Will must be an “eligible person” in the eyes of the law.
Who Is An Eligible Person?
Section 57 of the Successions Act 2006 (NSW) defines who an eligible person constitutes. They include, but are not limited to:
- The spouse of the deceased;
- Any child of the deceased;
- A former spouse of the deceased;
- Common law or de-facto person in a relationship with the deceased;
- A grandchild of the deceased;
- Someone who was a legal dependent of the deceased;
- A member of the household of the deceased; and/or
- A person who had a relationship with the deceased and provided care, support, or were close didn’t receive a payment for the relationship.
The last category is a parent, step-child, sibling, or former de-facto spouse that’s not explicitly listed as an eligible person who can become eligible under the last category they lived with the deceased.
Time Extensions For Contesting a Will
The Court will consider your claim by looking at the following questions to determine whether or not you have ‘sufficient cause’ for a time extension to be granted:
- The reason(s) for the lateness of your claim and whether the time delay is great or not?
- What prejudices, if any, would any other beneficiaries to the Will suffer?
- Has there has been any unfair conduct by either party?
- What is the strength of the claimant’s claim?
What If The Executor Of a Will Is Not Acting Properly?
The role of the Executor is an immense responsibility that cannot be taken lightly. Unfortunately, Executors don’t always do what they’re supposed to. Whether it’s because they have not been properly advised of their responsibilities, or they’re just plain lazy, you as a beneficiary shouldn’t be made to suffer.
What happens when the Executor doesn’t do the right thing? What options are available to you as a beneficiary when the Executor is not acting per the deceased’s wishes? The answer is simple, and another one of the rights of beneficiaries of a Will. You can apply to have Probate revoked in such a situation, effectively removing the Executor from their position.
How Can Probate Be Revoked?
Probate can be revoked by two means. These are by Statute under the Probate and Administration Act 1898 (NSW) and by the Court.
The statutory power of the Court to revoke Probate is enshrined in the Probate and Administration Act. This Act is concerned with the proper administration of an estate. If this process is delayed or not carried out in a stipulated way in the Will, the Court will act to revoke the existing Grant of Probate.
Furthermore, the Court itself possesses the power to revoke Probate where there has been an absence of ‘due’ and ‘proper’ administration of the estate amongst the beneficiaries of the Will.
Importance of Seeking Legal Advice
When discussing matters such as the rights of beneficiaries of a Will, you must seek out the assistance of an experienced family lawyer.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way. With years of experience under our belt, we pride ourselves on making each client’s Will’s and Estate planning experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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