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Family Will Disputes
Family will disputes are all too common and arise for a variety of reasons. If someone was left out of the will of a loved one and they’re deemed an eligible person in New South Wales, they can dispute the will, often by making what is known as a Family Provision Claim. If the executor is lax in applying for a Grant of Probate, the will is suspicious or invalid (for instance, due to concerns about the will-maker’s capacity or undue influence), or if there are family disputes about property, a family will can be contested. If you have family disputes over inheritance, get legal help from the NSW Wills & Disputes Helpline today.
The Responsibilities Of The Executors Of A Will
Executors of a will have certain responsibilities to carry out, including obtaining a Grant of Probate from the court (where necessary) and distributing the assets from the deceased’s estate as per the will. Executors have an ‘executor’s year’ time limit (which isn’t legally binding) in which to obtain a Grant of Probate and disperse the assets. Sometimes, family inheritance disputes occur when beneficiaries of a will feel frustrated when the executor delays the distribution of the assets and seems unconcerned about others receiving their share promptly. This can cause family will disputes that can only be resolved in a Supreme Court hearing or during Mediation.
What If The Executor Doesn’t Wish To Act?
If the executor doesn’t wish to go ahead, they can file a Renunciation of Probate form with the NSW Supreme Court. A probate lawyer from the NSW Wills & Disputes Helpline can assist executors wishing to apply for probate, renounce their role, or any other matter regarding the will, so contact us today.
What Is A Grant Of Probate?
Obtaining a Grant of Probate in NSW may not be necessary, depending on the kind of assets in the will and the size and value of the estate, so there is no law that states it must be obtained in every case. Smaller amounts are often released without the need for Probate. Should an executor delay applying for a Grant of Probate for more than 12 months since the deceased’s death, eligible persons expecting to benefit from the will may make an application requesting that the court set a deadline for the executor to obtain a Grant of Probate.
What if the Executor Fails in Their Duty?
If the executor still fails in their duty, such as by unreasonably delaying the estate administration or not acting in the best interests of all beneficiaries, expected beneficiaries can take further action by consulting a family dispute resolution practitioner in a law firm such as The NSW Wills & Disputes Helpline. An attempt can be made to replace the executor or seek orders from the Court to compel them to act.
Family Disputes About Property in Deceased Estates
Disagreements about what beneficiaries believe should happen with estate property are a common cause of will disputes. Our lawyers have experience in resolving disputes that can occur when there’s no agreement about selling the family house and dividing the profits, or keeping the home in the family for descendants. The will-maker might have written that beneficiaries could choose whether or not to buy the home from the estate. Still, beneficiaries often can’t agree on what to do. If a beneficiary decides to buy the property from the estate, it’s essential to get a valuation so all interested parties can agree on a price. Sometimes, these disputes over property can also form part of a Family Provision Claim if an eligible person’s needs for housing or support are not adequately met from the estate.
If The Executor Fails To Follow The Will
Beneficiaries can sometimes become suspicious of an Executor who is also going to benefit from the deceased’s estate. Arguments may arise over a suspicion that the Executor isn’t following the will and has made unauthorised transfers of assets or is mismanaging estate funds. This often calls for forensic accountants to determine whether money or property has been removed from the estate in an improper manner. If proven correct, the Executor is usually removed, can be held personally liable, and has their share in the estate reduced for their mismanagement.
This often calls for forensic accountants to determine whether money or property has been removed from the estate in an improper manner. If proven correct, the Executor is usually removed and has their share in the estate lessened over their mismanagement.
Disputes Over Undue Influence On The Will-Maker
Other causes of family disputes around inheritances and wills include accusations that a beneficiary has asserted undue influence over the testator. The accusers may believe the beneficiary has influenced the will-maker to write their last will and testament in a way that goes against the testator’s true intentions and wishes. The undue influence or coercion can include force, violence, flattery, intimidation, deception or blackmail and is usually hard to prove.
You should speak to your NSW Wills & Disputes lawyers about the kind of evidence you should collect to prove undue influence on the will-maker, such as sudden changes in the will that benefit the alleged influencer, or the testator’s isolation. If the evidence proves coercion or undue influence has occurred, that will may be declared invalid, and an earlier copy or draft of the will may be found valid instead. Otherwise, intestacy rules will determine the division of the estate.
What Happens When The Will Is Not Valid?
There are times when family will disputes involve beneficiaries questioning the validity or legality of a will. A will can be deemed invalid for reasons including:
- The Will Was Not Prepared Properly: This can occur when people draft their will on their own without professional legal advice, or if the strict legal requirements for signing and witnessing in NSW are not met.
- Undue influence is Proven: As discussed above, where the will-maker was pressured or coerced.
- The Will-Maker is Deemed or Thought to Have No Testamentary Capacity: This means they did not have the necessary mental understanding at the time of making the will (e.g., understanding they were making a will, the nature of their assets, or who their beneficiaries might be).
- Fraud or Forgery: Where the will document or signatures are found to be fraudulent.
If the will is deemed illegal or invalid, and the deceased has an earlier draft of a will that can be proven valid, then the court may grant Probate for that will instead. However, if there is no earlier will to call upon, the court can declare the estate intestate and order it to be administered as per the NSW intestate succession law.
Family Will Dispute Lawyers Near Me
The NSW Wills & Estate Disputes Helpline has a team of experienced family dispute resolution practitioners and family will dispute lawyers in Sydney. These experts have a wealth of experience and knowledge about contesting a will for a fair outcome. If you need family dispute resolution services for inheritance, get in touch with our family will dispute lawyers today at 1300 679 222.
Frequently Asked
Questions
Who can contest a will in New South Wales?
In New South Wales, an “eligible person” as defined under the Succession Act 2006 (NSW) (see list above) can make a family provision claim if they believe they haven’t been adequately provided for. Separately, any person with a legitimate financial interest in the estate (like potential beneficiaries under a prior will or next of kin if the will is invalid) can challenge the validity of the will itself based on grounds like lack of capacity, undue influence, or fraud.
When to contest a will in NSW? What are the time limits?
This is extremely important. For family provision claims in NSW, you generally must file your application with the Court within 12 months from the date of death of the deceased. While the original content mentions 6 months from probate for contesting validity (e.g., via a Caveat if you believe the will is invalid due to issues like fraud before probate is granted), the ‘12-months from the date of death rule’ is critical for family provision claims. The Court can grant an extension in limited circumstances, but it’s difficult. It’s crucial to seek legal advice urgently due to these strict time limits.
How to contest a will in NSW?
The process of contesting a will in New South Wales, Australia, typically involves first seeking legal advice to understand your rights and the strength of your claim. For a family provision claim, this may lead to negotiations, mediation, and if necessary, filing a Summons in the Supreme Court. For challenges to a will’s validity, it may involve filing a Caveat in the Probate registry. Our lawyers will assist you throughout the entire process and can represent you in court.
What to expect when contesting a will?
When contesting a will, it’s important to be aware that the process can be complex, emotionally draining, and time-consuming. It’s also important to understand that the outcome is not guaranteed. However, with the help of our experienced dispute lawyers, you can expect clear and honest advice, comprehensive representation, and a commitment to achieving a fair resolution for your inheritance dispute.
How much does it cost to contest a will in NSW? Is "No-Win No-Fee" available?
Your initial consultation with the NSW Wills & Estates Helpline is free and confidential. If you decide to proceed, we will provide you with a clear costs agreement explaining our fees. For many will contest and family provision claims, we may offer a “No-Win No-Fee” arrangement (conditions apply), meaning you generally only pay our legal fees if your claim is successful. We will discuss this transparently with you.
NSW Wills & Estates Helpline can be contacted on 1300 679 222. Our helpline reps are well versed in all things related to Will & Estate disputes. If there is an issue we can’t answer over the phone, we have access to a mountain of resources so that we can call you back within the day to provide answers.
Due to time differences across states, we recommend leaving a voicemail if your call is not answered. We promise to return your call within the day taking note of time differences.
Our phone helpline is manned Monday to Friday, 8.30am – 5.00pm (AEST). Our Facebook social media page is manned 7 days a week and we respond to direct messages quickly. In fact, most of our enquiries come via Facebook private chat.
