Contesting a Will/Estate
If you have been left out of a Will or Estate, or have not received an inheritance you may be able to contest the will in the Supreme Court of New South Wales by way of Family Provision Claim which is brought under Chapter 3 of the Succession Act 2006 (NSW).
Common questions from our clients are:
- How can I get a copy of the Will?
- What are my entitlements in the Deceased Estate?
- Can I contest the Will?
- Is it hard to contest a Will?
- How much time do I have to contest the Will/is there a time limit?
- What is a Family Provision Claim?
- Can I contest the Will after Probate is granted in the NSW Supreme Court?
- I don’t believe the Will was valid, what can I do?
Who can contest a will/estate?
To contest an estate, you must be an eligible person
- Surviving husband or wife of the deceased person;
- A person who was living in a de-facto relationship with the deceased person;
- A child of a deceased person, including an adopted child;
- A former divorced husband or wife of the deceased;
- A person who was:
- Wholly or partly dependent on the deceased person; or
- A member of the household of the deceased person.
- A person who was in a close relationship with the deceased person.
On what grounds can I contest a will/estate?
An “eligible person” can contest the estate (also known as a Family Provision Claim) on the following grounds:
- If they were dependent on the deceased
- If their share is not adequate for their maintenance and support
- If the Will fails to make sufficient provision for ex-partners or children from previous marriages or de facto relationships;
- If the relationship between the deceased and the eligible person began after the Will was made;
- If the eligible person believes the Will is grossly unfair;
- If the deceased was not in sound mind when the will was made;
- If it can be proven that the deceased was unduly influenced by one or more of the beneficiaries at the time the Will was made;
- If the Will isn’t clear or contains ambiguities.
Obtaining a copy of the Will and or Probate:
The ALA Estates Solicitors will be able to assist you in obtaining a copy of the Will and or Probate. To obtain a copy of the Will you must fit one of the categories of people under s.54 of the Succession Act 2006 ( NSW)
There is a time limit of 12 months from the date of death of the deceased to make a claim. However, in some circumstances, we may be able to obtain an extension to the time limit.
Steps in applying to the Supreme Court for your entitlements:
In summary, the process of making an application for Family Provision (contesting the Estate) is as follows
- Obtain a copy of the Will;
- Seeking advice to determine if you have a claim;
- Entering into negotiations with the Estate;
- Obtain a copy of Probate;
- If negotiations are unsuccessful:
- Put the Executor/Administrator on notice of the intended claim;
- Make an application to the Supreme Court for Family Provision which includes filing:
- a Supporting Affidavit;
- a Notice of Eligible Persons; and
- a Costs Affidavit.
- Attend Mentions, Mediation and hearings as required:
- Reach settlement;
- Attend a Hearing for a Judge to decide
Where to from here?
At the initial consultation, we will take instructions from you to commence the process of contesting the estate.
Prior to attending your conference with us, we will send you an information form for your completion and to assist you to gather the relevant information required.