The passing of a loved one is often an emotional and challenging time for families. Amidst grief, the distribution of the deceased’s estate can sometimes lead to disputes, particularly if someone believes the will does not reflect the true intentions of the deceased or if they feel unfairly treated. Contesting a will is a legal process where a person challenges the validity of the will or the way the estate is to be distributed.
In New South Wales, contesting a will can be a complex area of law. Understanding the common grounds for contesting a will and how a family lawyer can assist you in this process is crucial for anyone facing such a situation.
What Does Contesting a Will Mean?
Contesting a will means formally challenging the legal validity or the fairness of the will. This usually occurs when an individual believes that the will does not accurately represent the wishes of the deceased or that their legal rights as an eligible person to a portion of the estate have been overlooked or ignored.
Contesting a will is not simply about disagreeing with the contents; there must be valid legal reasons to bring a claim. The process involves lodging a formal application in the New South Wales Supreme Court, which will then decide on the dispute.
Common Grounds for Contesting a Will in NSW
Several reasons exist for contesting a will in New South Wales. Some of the most common grounds include:
Lack of Testamentary Capacity
One of the most common reasons to contest a will is the belief that the deceased lacked testamentary capacity at the time the will was made. Testamentary capacity means the deceased must have had the mental ability to understand the nature of making a will, the extent of their assets, and the claims of potential beneficiaries. If the deceased was suffering from dementia, mental illness, or was under the influence of drugs or alcohol when the will was created, it may be possible to challenge the validity of the will.
Undue Influence or Coercion
A will can be contested if it is believed that the deceased was pressured, coerced, or manipulated into making or changing the will. This can include situations where a person with significant influence over the deceased exploited their position to obtain a more favourable inheritance. Proving undue influence requires strong evidence and legal expertise.
Fraud or Forgery
If there are suspicions that the will was forged or fraudulently created, this is a serious ground to contest the will. For example, if someone forged the deceased’s signature or altered the will after it was signed, the entire document may be invalidated.
Failure to Properly Execute the Will
The law requires that a will be properly signed and witnessed to be valid. If the will was not signed in accordance with the legal requirements, such as being witnessed by two people who are not beneficiaries, the will may be contested on procedural grounds.
Claims Under the Family Provision Act
In New South Wales, the Family Provision Act 1982 allows certain family members and dependants to make a claim against an estate if they believe they have not been adequately provided for. This is often the basis for contesting a will when someone has been left out or received less than they expected. Eligible persons include spouses, de facto partners, children, stepchildren, and certain dependants.
Claims under this act focus on whether the deceased made reasonable provision for the applicant’s maintenance, education, or advancement in life, rather than disputing the will’s validity.
How a Family Lawyer Can Assist When Contesting a Will
Contesting a will involves navigating complex legal and emotional issues. A family lawyer specialising in estate disputes can provide invaluable assistance in several ways:
Legal Advice and Case Assessment
The first step a family lawyer takes is to assess your case. They will review the will, the circumstances surrounding its creation, and your relationship with the deceased. This evaluation helps determine whether you have valid grounds to contest the will and what legal options are available.
Understanding Your Rights and Options
Family law can be complicated, especially in matters relating to wills and estates. A lawyer will explain your legal rights, the likely outcomes, and the risks involved in contesting a will. This clarity is crucial to make informed decisions.
Gathering Evidence
To successfully contest a will, strong evidence is needed. Family lawyers have experience in gathering the necessary documentation such as medical records, witness statements, expert reports, and any relevant correspondence. They know how to collect and present evidence effectively to support your claim.
Negotiating Settlements
Not all will disputes end up in court. Family lawyers often negotiate with other parties to reach an out-of-court settlement that is acceptable to all involved. This can save time, reduce stress, and lower legal costs.
Representing You in Court
If the dispute proceeds to court, your family lawyer will prepare your case, submit necessary documents, and represent you during hearings. They will advocate on your behalf, making sure your interests are strongly presented before the court.
Managing Emotional and Practical Challenges
Disputes over wills can strain family relationships and cause emotional distress. A family lawyer offers professional support and practical advice throughout the process, helping you manage stress and focus on what matters.
Time Limits for Contesting a Will in NSW
It is important to be aware of the strict time limits for contesting a will. Under the Succession Act 2006, applications to contest a will or make a claim under the Family Provision Act must generally be made within 12 months from the date of the deceased’s death.
Failing to lodge an application within this period can result in your claim being dismissed, so it is essential to act promptly and seek legal advice as soon as possible.
Common Misconceptions About Contesting a Will
Many people believe contesting a will is only for those who were left out completely. In reality, anyone who feels they were not properly provided for may have grounds to make a claim. This includes children, spouses, or other dependants.
Another misconception is that contesting a will is a quick and straightforward process. The reality is that it can be lengthy and complex, requiring patience and expert legal guidance.
Some also assume that contesting a will will result in their desired outcome. However, the court’s decision is based on evidence and legal principles, not on emotions or family dynamics.
Practical Tips if You Are Considering Contesting a Will
- Seek legal advice early. Do not delay if you believe there are grounds to contest the will.
- Keep records. Collect any documents, communications, or evidence that support your claim.
- Avoid confrontations. While emotions may run high, try to maintain respectful communication with other family members.
- Understand your case. Listen carefully to your lawyer’s advice and be realistic about possible outcomes.
- Consider mediation. Sometimes mediation can resolve disputes without the need for court proceedings.
Conclusion
Contesting a will in New South Wales is a sensitive and legally complex process that requires careful consideration and expert guidance. Whether you believe the will lacks validity due to capacity issues, undue influence, or fraud, or if you feel you have not been properly provided for under the Family Provision Act, a family lawyer can help you understand your rights and options.
From assessing your case and gathering evidence to negotiating settlements or representing you in court, a family lawyer plays a critical role in helping you seek fair treatment and protecting your interests during a difficult time.
If you are facing concerns about a will or an estate dispute, it is important to seek professional legal advice promptly. Early intervention can make all the difference in pursuing a successful claim and achieving peace of mind for you and your family.
