Inheritance rules in New South Wales are complex, and if you want to navigate these rules, you may run into trouble without the help of a lawyer. The decision to contest or challenge a will is a big one – the process can be time-consuming, stressful, and expensive. There could be unintended consequences if you move forward without a clear understanding of the rules surrounding wills and estates. So, it’s worth speaking to a lawyer before you enter a will dispute.
NSW Inheritance Laws
The Succession Act 2006 governs inheritance laws, outlining the distribution of deceased estates, whether there’s a will or intestacy involved. It addresses family provision claims and estate administration, providing a framework for fair asset distribution.
Family provision claims enable eligible family members to challenge a will if they believe they haven’t been adequately provided for. Engaging experienced estate litigation lawyers is essential in this process. Challenging a will involves questioning its validity, which may stem from concerns about the testator’s mental capacity or the will’s legitimacy.
Claims must be lodged within 12 months of the date of death.
Intestate Succession in NSW
In cases of intestacy, the estate is distributed as follows:
- No spouse or children: The entire estate goes to the spouse.
- With children: The estate is divided between the spouse and children.
- No spouse or children: Parents and siblings are prioritised. Distant relatives may inherit if there are no closer living relatives.
- No relatives or will: The state government typically becomes the beneficiary.
Testamentary Capacity and Valid Wills
To create a valid will, the testator must be of sound mind and have the mental capacity to:
- Understand their assets
- Determine distribution
- Recognise potential claimants
- Consider the impact of their decisions
Wills must be made voluntarily, without coercion, and must be written, signed, and witnessed by at least two witnesses who are not beneficiaries or spouses of beneficiaries.
It’s crucial to update your will following significant life events, such as marriage, divorce, or the birth of children, to reflect changes in beneficiaries.
Consulting an experienced will and estate lawyer is the best way to ensure your will is valid and comprehensive, minimising the risk of disputes.
Family Provision Claims
The death of a loved one is a challenging and stressful time, especially if you feel you have been unfairly provided for in a Will (or not provided for at all). If you find yourself in this position, there are legal actions you can take. However, it is important that you know who can contest a Will, because the process can be complicated.
Under the Succession Act 2006 (NSW), eligible family members—such as spouses, de facto partners, children, siblings, parents, and dependents—can contest a will. Executors should be aware of potential claims and seek legal advice early to fulfil their obligations to the deceased. Accurate documentation and communication are vital for resolving disputes efficiently.
It is important to remember that once you have passed away, the Will cannot be changed without the intervention of the Supreme Court. Moreover, the legal fees associated with contesting a Will far outweigh the cost of seeing your solicitor early on.
It is therefore important that you and your family get it right the first time. Contact our Will and estate Lawyers at Owen Hodge today for a cost-effective solution to your estate planning. We also have experienced Power of Attorney lawyers and can assist with any other matters regarding deceased estates, grant of probate, letters of administration and estate law.
Get in touch on 1800 770 780 or via [email protected].