Will Disputes

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.

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:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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