Have you been left out of a will? – The will lawyer explains contesting a will in new south wales

HAVE YOU BEEN LEFT OUT OF A WILL or not adequately provided for in a Will, then may be eligible to apply for a family provision order. A Will lawyer can assist with this matter.

What is a Family Provision Claim? – Explained by the Will lawyer

A Family Provision claim is an application made to the Court under the Succession Act 2006 to seek provision out of the Estate of a deceased person.

Who can bring a Family Provision Claim in New South Wales?

An eligible person, as defined by The Succession Act 2006, can bring a claim. An eligible person is defined in the succession Act and includes:

  • Husband or wife of the deceased
  • Children of the deceased
  • Former spouse of the deceased
  • Dependent grandchildren
  • Dependent household members (including step-children or former de facto partners),and
  • A person with whom the deceased was in a close personal relationship at the time of the deceased’s death

On what grounds can an eligible person make a claim:

A person making a Will (the Testator) has a right to distribute their estate according to their wishes. So, it is not possible to bring a claim just simply because the Will is unfair.

However, the legislation in New South Wales is designed for those to whom the deceased had a moral responsibility to provide. It allows those persons to bring a family provision claim in the event inadequate provision was made in the deceased’s Will.

Once it is established that the person is an eligible person under the Succession Act 2006, the next question the Court will consider is whether adequate provision for proper maintenance, education and advancement in life has been made by the deceased.

Factors that are considered in determining whether adequate provision has been made include:

  • The relationship of the applicant with the deceased
  • Nature and size of the estate
  • Financial resources and needs of the applicant
  • Needs and resources of the other competing beneficiaries
  • Any provisions made to the applicant during the deceased lifetime
  • Testamentary intentions of the deceased
  • Character and conduct of the applicant

Time Limit

You have 12 months from the date of death to raise a Family Provision Claim.

Will I have to go to Court to Contest a Will?

In Family Provision matters, it is a compulsory part of the process to attend mediation. Mediation involves both parties meeting with a trained mediator, who assists the parties come to a resolution without involving the Court. 

Many Family Provision claims are resolved through mediation and this reduces legal costs, brings earlier resolution and preserves family relationships. In some instances, however contesting a Will in Court cannot be avoided.

How much will it cost to bring a Family Provision Claim by a Will Lawyer?

You can use your WILL to create Trusts for your children or other beneficiaries. There
That really depends on how lengthy and complex the matter is. The costs can vary widely. It is also important to understand that legal costs do not always come out of the Estate and the applicant may find they need to cover their own costs. Every case varies and it best to speak to us. Once the details of you case is understood we can provide an idea about the legal costs involved.

Our Will lawyer, Amanda Dobbie, provides her legal advice specialising in the Will & Estate area and emails her today to book in 30 minutes free consultant on contesting the Will matter.

Related Posts