Will and estate disputes can be complex and emotionally charged, especially when family members disagree about how to distribute the deceased person’s estate or honour their final wishes. At NSW Wills & Estates Helpline, we have witnessed firsthand the devastating impact these disputes can have on families.
In this guide, we will explore the complex world of will and estate disputes, including family provision laws. Whether you are an eligible person seeking to understand your rights, an executor striving to navigate the process smoothly, or simply someone curious about the legal intricacies surrounding end-of-life affairs.
It is essential to obtain expert legal advice from a dispute lawyer to navigate the intricacies of these family-related disputes effectively.
Understanding Wills and Estates
As a guide, it is important to understand the fundamentals:
- The Will: A legal document called a “will” directs how your assets are distributed after your death. You can also use a will to appoint guardians and an executor.
- Will-Maker: A will-maker is a person who creates or drafts a last will and testament. In other words, a will-maker is a person who formally outlines their wishes regarding the distribution of their assets, the appointment of guardians for minors and other important matters to be addressed after their death.
- Deceased Estate: A person’s estate is everything they own at the time of their death. This includes all tangible assets, such as real estate, vehicles, and personal belongings, as well as intangible assets, such as bank accounts, investments, and life insurance policies.
What Are the Common Grounds for Estate Disputes?
Estate disputes can arise for various reasons, and they can be emotionally charged and legally complex. As a guide, some grounds for estate disputes can include:
- A Will’s Validity: One of the main reasons for estate disputes is a challenge to the validity of the will. This can happen if there are doubts about the testator’s mental capacity when the will was made, allegations of fraud or undue influence, or if the will was not executed properly according to the law. Learn more about contested wills & challenges.
- Family Provision Claims: In many jurisdictions, certain family members (such as spouses, children, and dependents) have legal rights to a portion of the deceased’s estate. If a will doesn’t adequately provide for these family members, they may challenge the will, arguing that it does not make reasonable provision for their financial needs. Understand more about how to contest a will.
- Executor Disputes: Estate disputes can arise when the appointed executor of the estate fails to carry out their duties properly or is accused of mismanagement or misconduct in administering the estate. A disappointed beneficiary or other interested party may seek to remove the executor or challenge their actions with the help of an estate lawyer.
- Asset and Estate Property Valuation: Valuing and distributing specific assets or properties within a deceased’s estate can be contentious, leading to an estate dispute. Disagreements may arise over how to appraise and divide these assets fairly among family members.
When faced with an estate dispute or when creating a will to minimise the risk of disputes, seeking advice from a qualified NSW Wills & Estates Helpline estate lawyer will provide advice and work hard for a successful outcome.
What are Family Provision Laws?
Family provision laws are laws that allow certain family members to apply to the court for a share of a deceased person’s estate, even if they were not specifically named in the will or did not receive a sufficient share.
Family provision laws are based on the principle that certain family members have a moral obligation to be provided for by the deceased person’s estate. This is especially true for family members who were dependent on the deceased person financially or emotionally.
Who is Eligible For a Family Provision Claim?
To be an eligible person for a family provision claim, you must be a “family member” of the deceased person. This includes spouses, children, grandchildren, parents, and siblings. It may also include other close personal or financial relationships with the deceased person, such as an adopted child, a stepchild, a de facto partner, or a former partner. Find out more about who has legal standing to contest a will.
To succeed in a family provision claim, you must prove that you have a “moral obligation” to be provided for from the deceased person’s estate. This means that you must show that the deceased person had a responsibility to provide for you, either financially or emotionally.
The Role of Estate Dispute Lawyers
Our wills and estate litigation lawyers are experienced at resolving complex legal conflicts involving wills, trusts, and estates. We are experts in the complex laws, regulations, and emotions that often accompany deceased estate disputes over inheritances, asset distribution, and the execution of a deceased person’s final wishes.
Our wills and estate litigation lawyers provide expert guidance for our clients, whether they are beneficiaries seeking fair provision, executors defending the deceased estate’s administration, or individuals contesting the will’s validity. We have a deep understanding of probate and estate laws, and we work to protect our clients’ rights and resolve disputes through negotiation, mediation, or, when necessary, estate litigation.
Obtain Legal Advice at NSW Wills & Estates Helpline
Certain circumstances may present themselves where you need a wills and estate dispute lawyer, and at NSW Wills and Estates Helpline, regardless of your financial position, our lawyers have your best interests at heart and are here to help.
For more information, enquire through our website, email or call us at 1300 679 222 for a free consultation today.
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.
