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Please note that each State of Australia has a different set of rules which apply when challenging a Will. There are different time limits and eligibility differs in each state depending on where the deceased died. Contact the best lawyer in your area for more information.
When a person writes a Will, it's 100% their right to decide who inherits their assets after they die. But Australia also has laws to protect eligible people who have been left with little or nothing in a Will.
If you've been left out of a Will or you feel that you haven't been left enough, you may be eligible to contest or challenge the Will.
Who Can Contest A Will In NSW?
There are four overarching groups of people who are generally eligible to contest someone's Will, including:
• spouses (current and previous)
• de facto partners
• children (including some stepchildren)
• anyone who shared the same home with the person who passed away (depending on the circumstances).
If you belong to one of these groups and you believe that you're entitled to more of the estate than you got, you potentially have a valid claim.
What Are The Grounds For Contesting A Will In NSW?
There are four main reasons for contesting a Will, including:
Family maintenance
This is the most common type of claim. It's where someone close to the person who died believes that they weren't left enough, so they want a larger part of the estate.
Fraud
Fraud could exist if you think a beneficiary has committed fraud for the sole purpose of receiving a benefit under the will. However, you need to convince a judge that there is evidence to prove fraud was committed.
It must be established that the fraudulent conduct had a direct effect on the making of the Will and that the fraudulent conduct was committed by the beneficiary for the sole purpose of receiving a benefit under the will.
Lack of capacity
If you were named as a beneficiary in a previous version of a Will but were removed from the last version at a time when the Will-maker lacked capacity, you may be able to challenge the validity of the Last Will.
Undue influence
The basis of this kind of claim is that the Will-maker was pressured into making a Will.
You must show that the deceased person was 'unduly influenced' by a person (or people) to sign a Will that wasn't in line with their true wishes. It is one of the most difficult claims to succeed with.
Breach of trust
If you are a beneficiary of a Will and you believe the executor has failed at their job you can ask the court to remove them.
How To Challenge A Will In NSW?
To challenge a Will in NSW you should commence proceedings in the Supreme Court of NSW.
If you wish to challenge the validity of a Will, the first step would be to find out if Probate has been granted. You can do this by calling the Supreme Court of NSW and asking if there has been a grant of Probate.
You may also wish to file a Probate caveat, which will prevent a grant of Probate. Once you file a Probate caveat, the Court will not make a grant of Probate until the parties agree that the caveat can be removed or the court makes an order.
If you cannot reach an agreement with the other party regarding the validity of the Will and removing the caveat, one of the parties must commence court proceedings so that a Judge can decide the outcome.
Usually, court proceedings are commenced by the claimant, by filing a Statement of Claim. The claimant is ordinarily the person who is arguing that the Will is valid. The Statement of Claim sets out the reasons why the Will is allegedly valid.
The other party (the defendant) then files a Defence to the Claim in court setting out the reasons why the Will is allegedly invalid.
Both parties should then prepare evidence in the form of affidavits to support their claim or defence. These affidavits are filed in court and the Judge considers this evidence before making a decision as to the outcome of the proceedings.
How Long Do You Have To Contest A Will In NSW?
If you want to contest a Will in the state of NSW, you are required to file an application with the Supreme Court no later than 12 months from the date of death. If it is unclear whether you are eligible to contest a Will or you are uncertain whether you have grounds to contest a Will, you would be advised to seek legal advice before commencing an application. An application is considered “made” on the day it is filed in the Supreme Court Registry.
Sometimes the date of death is uncertain. In these cases, the court may determine a date or time of death that is judged to be reasonable.
The reason time limits are strictly enforced on Will challenges is to allow for the deceased estate to be administered quickly and efficiently. An estate can not be fully administered until all disputes are resolved. It is important for an executor to finalise their duties and distribute the estate once the time limit has been reached. It also provides any beneficiaries with a peace of mind knowing there will be no challenges to their interests.
If the last day of the 12-month limit falls on a non-business day, you can also seek an extension until the first business day.
Hire The Best Lawyer In Sydney Who Cares About Your Needs
Will disputes are increasingly common, especially given the changing and complex nature of Australian families. But they don't need to be a battle—someone close to you dying is hard enough on everyone involved. It's all about working together for a fair result.
But what if someone dies without leaving a Will in NSW? Our lawyers are amongst some of the best in Sydney, who will take the time to listen to your concerns and work with you to determine the best way forward.
At JCL Legal, we consider your whole situation and take the time to understand your feelings and your needs. Contact us now and talk to one of the best Sydney lawyers!
sources: unifiedlawyers.com.au, mauriceblackburn.com.au, sydneywillslawyer.com.au, gotocourt.com.au, armstronglegal.com.au
