Will Disputes: Navigating the Process and Protecting Your Rights

At Chamberlains, we know that will disputes and family provision claims can be emotionally and legally challenging. Our experienced dispute lawyers in Sydney are here to guide you through the entire process.

Whether dealing with an issue of undue influence, questioning a will's validity, or seeking further provision for a family member, we offer comprehensive support to help secure a successful outcome for you and your family.

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What is a will dispute?

A will dispute arises when there is disagreement over the terms of a deceased person’s will or its execution. Contesting wills can be complex, involving several parties involved and various legal matters under the Succession Act 2006 (NSW). Common reasons for disputes include:

When someone feels they didn’t get enough from the will
Doubts about whether the person who made the will (the will maker) was mentally capable of making sound decisions
Where are there are concerns that someone pressured the will maker into certain choices.

Losing a loved one is hard enough without feeling overlooked or unfairly treated by their last wishes. It’s important to know there are valid reasons to challenge a will if you believe something isn’t right.

Our role is to help you understand your legal rights and navigate any legal proceedings to ensure your interests are protected.

Family Provision Claims: Are You an Eligible Person?
Under the Family Provision Act 1982 (NSW), certain individuals may file a family provision claim if they believe they have not been adequately provided for in a deceased’s estate. This typically includes spouses, de facto partners, children, and individuals who were partly or wholly dependent on the deceased. If you’re unsure whether you qualify as an eligible person, our team of dispute lawyers can help determine your standing and guide you through the legal action required.

Time limits and legal requirements in will disputes

There are strict time limits for filing a family provision claim in NSW. Generally, you must commence court proceedings within 12 months from the date of death of the deceased person. There are exceptions to this rule, depending on all the circumstances surrounding the case. It’s essential to seek prompt advice from an experienced will dispute lawyer to ensure you meet the deadlines.

Exceptions to the 12-month rule include:

Lack of awareness – if a potential claimant was unaware of the death or their right to claim until after the 12-month period.
Delayed discovery – if new evidence or information comes to light after the deadline, indicating a claim is necessary.
If the claimant is a minor or someone under a legal disability, the court may consider extending the time.
Where there are exceptional reasons that justify the delay, the court may exercise discretion to allow a late claim.

Our legal process for contesting wills

Initial Consultation and Free Legal Advice
The journey begins with a compassionate, no-obligation consultation with our law firm. Here, you’ll share your story and concerns, and we’ll provide clear, empathetic advice about your options and the likelihood of a successful outcome. We aim to understand your situation deeply and outline the steps ahead, ensuring you feel supported from the start.
Filing a notice to dispute
If you decide to proceed, the next step is to file a formal notice to dispute the will. This critical step initiates the legal proceedings. Our dispute lawyers will help you prepare and submit this notice accurately, explaining each detail to make the process as stress-free as possible.
Mediation and Dispute Resolution
Many will disputes can be resolved through mediation, a process designed to find a mutually agreeable solution without going to court. Mediation offers a more collaborative and less confrontational approach, which can preserve family relationships and reduce emotional strain. Our team will support you through the mediation process, advocating for your rights while seeking a resolution that honours your needs.
Court Proceedings
If mediation doesn’t result in a resolution, we may need to move forward with court proceedings. This involves preparing for a court hearing in the Supreme Court of NSW. Throughout this stage, our experienced will dispute lawyers will work diligently to build a strong case on your behalf, guiding you through every legal nuance to ensure your position is robustly presented.

Understanding the financial impact

When contemplating whether to contest a will, it’s important to consider the potential financial repercussions of not taking action. If you are a spouse, child, or other eligible person who believes you have been unfairly treated or excluded from a will, the financial consequences could be significant. You might lose access to a portion of the estate, including assets like a superannuation fund, real estate, or other valuable property.

By not challenging a will, you risk losing out on a family provision claim that might have addressed your financial needs. This could impact your ability to maintain your lifestyle, cover living expenses, or secure your future needs. For instance, if you were part of the deceased’s household or had a close personal relationship with the deceased, you might have a stronger claim than you realise.

Costs and fee arrangements in estate litigation

The legal costs associated with estate litigation can vary. Factors include the complexity of the case, the length of the legal proceedings, and whether the case proceeds to a court hearing. At Chamberlains, we offer win no fee arrangements for many will disputes, allowing clients to pursue justice without upfront financial risk.

Considering contesting a will: key points to evaluate likelihood of success

If you’re thinking about contesting a will, it’s essential to understand whether you have a strong case. Here’s how to evaluate your situation step-by-step:

Assess your eligibility and relationship
To contest a will in New South Wales, you must qualify as an eligible person under the Succession Act 2006 (NSW). This generally includes being a child, spouse, former partner, or someone partly dependent on the deceased person. For example, if you lived in the deceased’s household or had a close personal relationship (like caring for them during illness), this might strengthen your claim. If you’re a former spouse but remained financially dependent, you could also have grounds to contest.
Evaluate grounds for contesting a will
You need valid reasons to challenge a will. Common grounds include:
1. Unfair treatment where you feel you were left out or given less than what is reasonable. In these cases you may argue for a more significant share, especially if others with less need were favoured.
2. Undue influence where you suspect someone manipulated the will maker into unfairly favouring them. This might be grounds for dispute.
3. Lack of testamentary Capacity where the deceased’s mind was of a state that they may not have understood their actions.
Consider financial implications and benefits
Think about what you stand to gain versus what you might lose. Contesting could grant you access to assets like a superannuation fund, property, or other valuable estate items. However, be mindful of other costs. If the estate is small or heavily indebted, pursuing a claim may not be financially sensible. It’s crucial to balance the potential inheritance against the costs of legal proceedings and the likelihood of a successful outcome.
Be mindful of time limits
You must act quickly, as there is a 12-month time limit from the date of death to contest a will in NSW. If you delay, you risk losing your right to challenge the will. However, if there are exceptional reasons, such as not knowing about the death or discovering new evidence late, the court may grant an extension. Always consult a dispute lawyer early to avoid missing deadlines.
Seek professional legal advice early
Consulting a will dispute lawyer is crucial to navigating the complexities of contesting a will. They can help assess the strength of your claim, guide you through gathering necessary evidence, and provide a realistic outlook on your case’s potential success. For example, they can help you understand how previous similar cases were resolved and what that might mean for your situation.

By taking these steps, you can better understand your position and whether contesting the will is a viable option for you.

Preventing Will Disputes: Best Practices for Estate Planning

Effective estate planning is essential for protecting your family’s future and minimising the risk of will disputes. By creating a clear and comprehensive last will, you can ensure that your assets are distributed according to your wishes, thereby preventing misunderstandings or conflicts among beneficiaries. Regularly updating your will to reflect changes in your life, such as marriages, divorces, or the birth of children, can also help prevent disputes.

Including provisions for specific family members, outlining family provisions for dependents, and providing clear instructions regarding assets such as superannuation funds can help clarify your intentions. Open communication with your beneficiaries about your intentions can also play a vital role in maintaining family harmony and avoiding conflicts.

Executor dealing with a will dispute: responsibilities and next steps

As an executor dealing with a will dispute, it’s important to understand your roles and responsibilities:

Executor duties and fair administration

Your main duty is to administer the deceased’s estate per the last will while managing any disputes. This includes handling any family provision claims fairly and impartially.

Managing legal proceedings and challenges

You may need to address challenges regarding undue influence, testamentary capacity, or adequate provision. Prepare for potential legal action and court proceedings if disputes escalate.

Handling estate distribution

It’s crucial to manage the distribution carefully, especially if the grant of probate is pending or a dispute resolution is ongoing. Work closely with legal professionals to navigate probate proceedings.

Seeking legal advice and support

Engage with estate lawyers or a dispute lawyer for expert guidance on your responsibilities and to protect yourself from any legal liabilities. Consider a free consultation to clarify your legal position.

Emphasising communication and mediation

Facilitate mediation as an alternative to court, aiming for a collaborative resolution. Keeping all parties involved informed is key to maintaining transparency and fairness.

Preparing for court hearings

If mediation fails, be prepared for a court hearing in the Supreme Court. Ensure all necessary documents and evidence are ready to support the estate’s administration.

FAQs

Who can contest a will in NSW?

In NSW, eligible persons include spouses, de facto partners, children, and those financially dependent on the deceased. If you’re unsure about your eligibility, consulting with a will dispute lawyer is essential.

How much does it cost to contest a will in NSW?

Costs vary, but Chamberlains offers a win no fee option to manage financial risks. Contact our team to discuss a tailored fee arrangement based on your case.

What kind of evidence do you need to contest a will, and how do you gather it?

To contest a will, you’ll need strong evidence to support your claim. Start with financial records to show your financial dependence on the deceased person—like shared bank accounts or payments they made on your behalf.

Proof of dependency is also crucial. For example, if you lived in the deceased’s household, gather documents like utility bills or lease agreements that show your living arrangements. If you’re challenging the will due to the will maker’s mental capacity, medical reports from doctors diagnosing conditions like dementia can be vital. Statements from witnesses who were present when the will was drafted or who can speak about the deceased’s state of mind or any undue influence are also important. If there were previous versions of the will, they could highlight sudden changes or signs of manipulation.

An experienced will dispute lawyer can guide you in collecting and presenting this evidence to build a strong case. They’ll help ensure all the relevant information is organized and presented clearly to support your claim.

Can you contest a will after the estate has been distributed?

Yes, it is possible to contest a will after the estate has been distributed, but it requires proving an oversight or procedural error during the probate proceedings.

How do blended families contest a will?

In blended families, contesting a will can be challenging due to the complex dynamics between biological children, stepchildren, and current or former partners. Disputes often arise over asset distribution, as each member may have different expectations based on their relationship with the deceased person. To contest a will successfully, it’s important to demonstrate a clear financial need or dependency, such as being partly dependent or contributing significantly to the deceased’s household. Consulting with experienced will dispute lawyers can help navigate these complexities and seek a fair outcome.

Who pays for a will dispute lawyer?

Usually, each party pays their own legal fees, but sometimes the court may order the estate to cover these expenses. We provide a clear outline of potential costs during our initial consultation.

How can changes to a will lead to disputes?

When a will is altered or revoked, disputes can arise if beneficiaries believe the changes are unfair or made under questionable circumstances, like pressure or confusion. If a will has been amended, added to, or parts have been removed, it’s crucial to ensure these changes were made clearly and with the will maker’s full understanding. If there are doubts, consulting a will dispute lawyer can help clarify your position and determine if the will can be contested.

How do you prevent a will from being contested?

Ensure your will is clear, legally sound, and updated regularly. Including a ‘no contest’ clause and discussing your intentions with beneficiaries can help prevent disputes.

Contact us.

P +61 2 9264 9111
E hello@chamberlains.com.au