An estate dispute in NSW arises when someone is unhappy with the terms of a will, questions whether it is a valid will, or suspects that undue influence or other factors affected its creation. For instance, beneficiaries can contest the validity if they believe the testator (the person who made the will) did not have the testamentary capacity to make a will when they signed it (meaning they lacked the mental ability to understand the nature and effect of making a will).
The Different Types of Estate Disputes
Many different types of estate disputes occur between family members or other beneficiaries. Some of the most common reasons to dispute a will include:
Contesting the Validity of a Will
This is the most common type of estate dispute in NSW. If someone believes the will is invalid, they can challenge it in court. There are several grounds on which a will can be challenged, such as:
- The will was not made voluntarily
- The testator (the person who made the will) did not have the mental capacity to make a will when they signed it
- The will was forged or altered
- The will was made under duress or undue influence
Challenging The Interpretation of a Will
An estate dispute can arise if there is a disagreement about the testator’s wishes or the will’s meaning needs to be clarified. If there is a disagreement under these circumstances, the court may have to interpret the will. This can be a complex and difficult process.
Claiming a Share of the Estate Under the Family Provision Act
The Succession Act 2006 (NSW) allows an ‘eligible person‘, such as a spouse, de facto partner, children, and dependents, to claim a share of the estate even if they are not mentioned in the will. Family provision claims must be filed within 12 months of death, though the court may extend this period in exceptional circumstances.
Alleging That the Executor of the Estate Has Acted Improperly
The executor is the person responsible for managing the estate and distributing the assets to the beneficiaries. If someone believes that the executor has misbehaved, has mismanaged the estate, or failed to carry out their duties properly, the will may be contested.
Launching an Estate Dispute in NSW
Resolving estate disputes can be complex and time-consuming, and must be heard by the NSW Supreme Court. If you or other beneficiaries are considering estate litigation, seeking legal representation from experienced estate dispute lawyers, such as those at the NSW Wills & Estate Disputes Helpline, is essential. The following reasons are the most common causes of estate litigation or dispute:
- The deceased may have made a mistake in their will, such as omitting a family member or other expectant beneficiaries and leaving someone out entirely, leading to a dispute
- A dispute may arise if the will-maker was under undue influence or pressure from someone to make a will in their favour
- The will may have been forged or altered after the deceased’s death, leaving out family members
- The family members and other will beneficiaries may not agree on how the assets from the deceased estate should be distributed
- The executor of the deceased person’s estate may have breached their fiduciary duties through mismanagement of assets or failing to act in the beneficiaries’ best interests, or failed to follow the instructions in the will
- An earlier version of the will may show someone was included, but left out of the current will
If you are a family member or interested party involved in estate litigation or dispute over an invalid or valid will, estate administration, an undue influence claim, or any other issue, seek legal advice as soon as possible. An experienced estate dispute lawyer can help you understand the Grant of Probate process, your rights and options concerning the deceased’s estate, and can represent you in the NSW Supreme Court if necessary, should a dispute arise.
The Process of a Grant of Probate
A Grant of Probate is a Supreme Court order that gives the executor of a will the authority to manage the deceased person’s estate and distribute the deceased’s assets according to the terms of the will. In NSW, the Grant of Probate is issued by the Supreme Court. The benefits of a Grant of Probate include:
- It gives the executor the authority to manage the estate and distribute the assets
- The executor can access the estate’s assets, such as bank accounts and property
- It protects the executor from personal liability for the debts of the estate
- It provides a public record of the executor’s authority
To apply, the executor must file an application with the Court and provide several documents, including:
- The will of the deceased person
- A death certificate
- An inventory of the assets of the estate
- A statement of the debts of the estate
The Court will then review the application and issue Probate if it is satisfied that the will is valid and that the executor is qualified to act. Processing times vary depending on court workload, typically ranging from 2-8 weeks, though complex applications may take longer. The Probate document is usually required by banks, financial institutions, and other organisations before they will release the deceased’s assets to the executor. If there is no will, or if the executor named in the will is unable or unwilling to act, then a grant of letters of administration may be issued. Letters of administration are similar to a Grant of Probate, but they give the administrator the authority to manage the deceased person’s estate when there is no will (intestate) or when the executor named in the will is unable or unwilling to act.
Call the NSW Wills & Estate Dispute Helpline
We understand this is an incredibly difficult time. Our experienced team is here to guide you through every step with compassion and clarity. The NSW Wills & Estate Disputes Helpline can assist you in navigating the complicated and often emotional process of disputing an estate. Dealing with the death of a loved one can be a difficult and emotional time, and the last thing you need is the worry about disputing the estate of the will-maker. If you’ve been left out of a will or believe a will in which you have an interest is somehow not right, and you are considering a dispute or estate litigation, call the NSW Wills & Estate Dispute Helpline today so we can advise you and help you get the benefits you are entitled to receive from the estate property.
