Family members can contest your Will in situations where your Will is valid but the provisions stated in the Will are unfair. In such situations, the Court can make few changes in your Will or can distribute your estate in favour of your family members. Your Will can also be contested if it is found invalid.
The expert team of Wills and estate lawyers at Sydney’s Owen Hodge Lawyers are here to help you navigate the process of how to contest a Will.
Contesting a Will
A person can transfer their estate to whosoever they wish (through their Last Will and Testament), but the freedom of disposition of an estate is partly true.
In some cases, family provision legislation seeks to rectify injustice caused by any Will. The amended Succession Act, 2006 (NSW) (“the Act”), which came into force on 1 March 2009, significantly extended the range of people capable of making claims against a Will.
When can a Will be contested?
The claim should be made soon after the death and before the assets in the deceased estate are distributed to various beneficiaries provided in the Will.
The 2009 amendment to the Succession Act 2006 reduced the period of bringing a family provision claim from 18 months to 12 months from the date of expiry of the testator. However, the time period for contesting a Will varies from one State to another.
Learn more: Contesting a Will time limit
Can family contest a Will?
Yes, they can. Under the legislation, there are six “eligible persons” who can make family provision claims.
If you have not received a share or believe you are entitled to a larger share of the deceased estate, and want to know how to contest a Will, speak to the estate planning lawyers at Owen Hodge.
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The process of how to contest a Will
Negotiation
In most cases, contested Will claims settle before the matter reaches the final hearing in the Court. In this process, the disputing parties resolve their conflicts between themselves.
Both the parties are represented by a negotiator who assists them in reaching a favourable possible outcome.
Mediation
Mediation is a process where a neutral, third party is appointed as a Mediator to try and help the parties resolve their dispute. They will help discuss the problems and find possible solutions that may be acceptable to both sides and thereby reach a settlement.
Over 90% of contested Will claims are settled either at or before the Mediation process. The parties are not required to go to Court if a settlement is reached at the Mediation process. Before hearing the claims, the Supreme Court has the power to order the parties to attend a Mediation process.
Arbitration
Instead of having the claim determined by the Court, a party can also choose to go for an Arbitration process. This is where the claim is heard and determined by an Arbitrator – the Arbitrator will hear the contentions of both sides and then will reach on a legally binding ruling.
Litigation
If the contested Will claim does not settle either at Mediation or during the Arbitration process, then one needs to apply to the Court (as it is the last option available).
The application should be made to the Court soon after the death of the testator and before the assets in the deceased estate are distributed to the various beneficiaries in accordance with the Will.
Speak to a disputed Wills solicitor
The team at Owen Hodge Lawyers are adroit at dispute resolution through the use of various appropriate dispute resolution methods including negotiation, mediation, arbitration and litigation.
Contact our experienced team of Will dispute lawyers in Sydney for legal advice or assistance with how to contest a Will on 1800 770 780
Further information about how to contest a Will:
- Can A Carer Make A Claim On The Estate?
- Can I Disinherit My Wayward or Estranged Child in my Will?
- Contesting A Will – The Court Procedure
- Current and Future Needs
- Executor: Defending a Contested Will
- Intestacy And Family Provision
- Protect your Inheritance Against a Claim
- Settlement of a Claim on a Estate
- Spouses Claims Against Estates Using Binding Financial Agreements
- Family Provision Act allows Wills to be Contested
Frequently asked questions
- The Will-maker was under undue influence
- The Will-maker lacked testamentary capacity at the time the Will was made.
- On the basis of provision i.e. if a child has been left out of a Will or there has been inadequate provision
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One key point to contesting a Will, which is not included in the appropriate legislation, is that contesting a Will (NSW) is not free. However, if you are successful in contesting the Will, the legal costs will be paid from the estate of the deceased person.
It varies case to case. It can take anywhere from 6 months to 24 months.