When a loved one dies, it is a stressful and difficult time for families, friends and loved ones. It’s a time to grieve and deal with the painful realities of a significant person in your life passing away. So, the last thing you need is someone contesting the estate of the deceased person.
Defending your inheritance from a challenger can be daunting, especially if it entails court proceedings. That’s why you need legal experts to help you through it. You can quickly resolve the conflict with less emotional and financial impact with the right legal representation and the correct strategies.
What is a Contested Will?
A deceased person’s will can be contested or challenged in court by eligible persons who believe it is invalid or unfair or they have not received adequate provision from the will-maker. An eligible person can make family provision claims and contest the deceased estate for several reasons, including:
- The will needs to be executed appropriately.
- The testator (the person who made the will) did not have testamentary capacity (the legal or mental ability to make a will).
- The will was the result of undue influence or fraud.
- The will does not make adequate provisions for certain individuals, such as a spouse or child from the deceased estate.
Suppose the will of a deceased person is successfully contested. In that case, it may be declared invalid or partially invalid, resulting in a different distribution of the deceased’s assets through court proceedings or mediation. Always seek legal advice if you believe a will is unfair or if someone is making a claim you believe is invalid.
Protecting Your Inheritance
Suppose you or other family members are beneficiaries of the will of a deceased person and are deemed eligible persons. In that case, you can protect your inheritance from being contested through estate litigation. Follow this advice to protect your inheritance:
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Ensuring that the will is properly executed
It must be a valid will and be the last will and testament signed by the will-maker and witnessed by two independent witnesses.
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Ensure that the testator has testamentary capacity
When making the will, the will-maker must have mental capacity and be of sound mind and memory.
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Protect the will from undue influence or fraud
This means ensuring the testator was not pressured or manipulated into making a will they did not want.
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Consider the possibility of making a family provision claim
This claim can be made via court proceedings in the Supreme Court by a spouse, child, or other dependent of the deceased if they have not been given adequate provision from the deceased estate.
Seeking Legal Advice
If you are concerned about a will’s validity or believe you may be eligible to benefit from the estate assets, make a family provision claim to protect your inheritance. But seeking independent legal advice from an experienced wills and estates lawyer at the Wills and Estates Helpline is crucial. A lawyer can offer advice on your options, help you protect your rights regarding the deceased’s estate or help you make family provision claims.
Defending Your Inheritance
When someone suddenly claims part of a loved one’s estate, remember that simply being a child, grandchild, or partner of the deceased does not automatically give them a right to make a claim. Our lawyers at the Wills and Estates Helpline will follow the stages listed below to defend your inheritance.
Get the Right Advice Early
Challenges against an estate sometimes brew long before the person dies, so nobody is surprised when they happen, but at other times, claims can shock other beneficiaries. Often, strategies can be deployed very early to minimise the damage or even extinguish the claim before legal proceedings begin. This saves stress, money, and the distributions from the estate being frozen for months or years, which is common.
Use Smart Strategies to Resolve the Claim
Our lawyers at the NSW Wills & Estates Helpline work with you and aim to negotiate a sensible, early resolution and out-of-court settlement so the matter doesn’t go to a court hearing or drag on. Considering the possible legal costs, mediated settlements generally work out better financially for interested parties. However, when early steps to negotiate fail to resolve the issue, you must file an “appearance”. This document simply tells the court you intend to defend.
Once all parties’ appearances are filed, the court invites the lawyers to a case management conference to devise a plan to move the family provision claim forward to mediation. If mediation fails, the matter goes back to the court and eventually before a judge who decides the claim’s merits. This can last for a day or many months.
Contact the NSW Wills & Estates Helpline Today
For advice from experienced estate litigation lawyers, contact the NSW Wills & Estates Helpline today. Our phone helpline is staffed Monday through Friday from 8:30 am to 5:00 pm. Our Facebook social media page is staffed seven days a week, and our response time to direct messages is quick. Most of our enquiries come via Facebook private chat. All our contact details are here.
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Here are some additional resources that you may find helpful:
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- The Law Council of Australia: https://www.lawcouncil.asn.au/
- The Legal Aid Commission of New South Wales: https://www.legalaid.nsw.gov.au/
- The State Trustees: https://www.statetrustees.com.au/
