Will Disputes

Thinking of Contesting a Will? Know Your Legal Rights

If you have chosen to contest the Will of a deceased estate, we understand it can be one of the most emotional and challenging processes you may ever have to do after the death of a loved one.

Being left out of a Will or receiving an unfair share of an estate can be a difficult situation to deal with, particularly if you have no experience with the issue. Will disputes are common and it is important you receive advice as soon as possible, due to the strict time limits that may apply.

Why might someone contest a Will?

Not everyone is eligible to contest a Will in NSW so getting the right information might make a difference to your circumstances. For the most part, the circumstances for contesting a Will are similar across all states in Australia.

There are a number of situations in which people choose to contest a Will:

  • The person considers they were inadequately provided for or were left out of the Will altogether.
  • At the time of death, a child was estranged from their parent.
  • The estranged relationship was the result of ill treatment from the parent.
  • They suffer from a disability and feel that their family member or carer has not provided adequate compensation in order to care for his or herself.
  • They were the carer of an ill spouse, partner, parent, friend or relative and had to leave their job as a result.
  • The Will was written by someone that wasn’t mentally able at the time of their death.
  • The Will is not clear.
  • The person believes the Will was prepared under the provision or influence of another person.
  • The Will appears to have been altered or changed by another person.

If you decide to contest a Will, seek legal advice early in the process to help you understand the laws that apply to the Will that you wish to challenge. When contesting a Will, you will need to lodge an application with the court within the timeframe required by your state. Seeking legal advice will help assist you with the complex nature and time limits of your Will disputes claim.

Who is eligible to contest a Will?

If you want to challenge a Will because you have not received any inheritance or because you believe you have been inadequately provided for, you need to show that you are eligible to bring a challenge. While each individual person’s circumstance will vary, the most common contesters of a Will are:

  • Husband or Wife
  • Ex-husband or Ex-Wife
  • De Facto/Partners
  • Children
  • Dependent grandchild
  • Member of the household
  • Close personal relationship (friend, neighbour, carer)

couple-looking-at-papers

Is there a time limit to contesting a Will?

In New South Wales, under the NSW Succession Act 2006, an eligible person must commence court proceedings within 12 months from the date of death. If proceedings are not commenced from the estate of a deceased person, the Will disputes claim will be met by a defence that will state that a significant amount of time has passed and it should be dismissed.

In some circumstances where extraneous circumstances are shown, an extension may be granted. However, this may only occur where there is no prejudice to the estate and the person contesting a Will can explain the delay.

What if there is no Will?

In some circumstances, a deceased person may not make a Will prior to their death. In these cases, the estate is distributed according to the rules of intestacy.

Intestacy rules allow the estate to be divided between the next of kin in order of priority, following an assessment conducted to determine the deceased person’s circumstances at their time of death.

Unfortunately, these rules pay no regard to the individual circumstances of the deceased, and for those that will acquire the money. The deceased has no control over the distribution of the estate which must be distributed among the deceased’s nearest blood relative, whether they had a close relationship to the testator or not.

Under the Succession Act in NSW 2006, eligible individuals are able to commence court proceedings contesting the rules of intestacy, altering the provisions that occurred within it.

What if the Will maker has lost mental capacity?

One of the grounds for challenging the validity of a Will is that the person who made the Will did not have the relevant mental capacity to understand his actions at the time the Will was made. In these circumstances, men and women may experience a lucid period where they appear completely rationale sometimes, and then forgetful and confused at other times.

If the Will is not made within a period of sound mind, memory and understanding it can be considered unreliable. In these circumstances, the capacity of the Will can be contested as to whether they had the mental capacity to be making such big decisions.

In order to determine whether the Will maker was equipped to make such a decision, they must adhere to a number of criteria:

  • They understand the effects of making the Will.
  • Understand what is being granted.
  • Understand the beneficiaries they should be giving consideration to.

If you are looking to dispute a Will or estate, contact Schreuders today and receive a fair entitlement via our “No Win No Fee”* policy.

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