Contesting a will in NSW can be a challenging and complex process. Whether you believe the will is invalid or you were unfairly excluded as a beneficiary, understanding the factors that influence the will contest success rate in NSW is crucial. This page outlines eligibility criteria, legal grounds, and the process involved in contesting a will, helping you assess your chances of success.
The success rate of contesting a Will in NSW
The success rate of contesting a will in NSW depends on various factors, including eligibility, the quality of evidence, and the grounds for contesting the will. A 2015 study by The University of Queensland revealed that 74% of contested cases resolved in court resulted in a change to the will, and 87% of cases that went to mediation were successfully resolved with the will being altered.
While these statistics may seem encouraging, each case is unique, and the likelihood of success can vary. Key factors influencing your chances include:
- Eligibility: Are you entitled to contest the will?
- Evidence: Do you have strong evidence supporting your claim?
- Legal Grounds: What specific legal grounds are you contesting the will on?
To accurately assess your chances of success, it is important to consult with a will and estate lawyer who can evaluate the strength of your case and advise you on your legal options.
Are you eligible to contest a Will?
The first factor that impacts the will contest success rate in NSW is whether you are legally eligible to contest the will. In NSW, only certain individuals can challenge the terms of a deceased person’s will. These include:
- A person named in the will but excluded or removed: If you were originally named as a beneficiary but later excluded or removed, you may have grounds to contest the will.
- A current beneficiary: If you are already a beneficiary but feel the will does not adequately provide for you, you may be eligible to contest it.
- A person who would inherit under the laws of intestacy: If you would have inherited if the will did not exist, you may have grounds to challenge the will.
If you fall within one of these categories, the next step is to consider whether it’s worthwhile to contest the will, based on the available evidence and legal grounds.
How long does contesting a Will take?
The length of time required to contest a will can vary significantly depending on the complexity of the case and whether the matter is resolved through mediation, settlement, or court proceedings. Your will contest lawyer can provide you with a general timeline based on the specifics of your case, but typically, the process may take anywhere from a few months to a year or more.
Is it worth contesting a Will?
Contesting a will is a personal and often difficult decision. Whether it’s worth pursuing depends on several factors:
- The strength of your claim: Do you have a valid legal basis for contesting the will, such as undue influence or lack of mental capacity of the deceased?
- Evidence: Can you provide compelling evidence to support your claim that the will is invalid or that you should have been included as a beneficiary?
- Costs and time: Litigation can be costly and time-consuming, and there is no guarantee of success. If the case goes to court, you may also be liable for legal fees if you lose.
In some cases, mediation may be a more cost-effective and time-efficient option to resolve the dispute. Consulting with an experienced estate lawyer is essential to determine the best course of action.
What grounds do you need to contest a Will?
To contest a will successfully, you must have valid legal grounds. These may include:
- Invalidity: The will is not legally valid due to errors, lack of proper execution, or failure to meet legal requirements.
- Undue influence: The deceased was coerced or manipulated by another person, leading to a will that does not reflect their true wishes.
- Lack of testamentary capacity: The deceased lacked the mental capacity to understand and make a valid will at the time it was signed.
- Fraud: The will is fraudulent, meaning it was not created or signed by the deceased person.
Each of these grounds requires substantial evidence to support your claim. If you suspect any of these factors may apply, consult with a lawyer to evaluate the strength of your case.
Can you contest a will based on family provisions?
Another common ground for contesting a will is a family provision claim. This applies if you were financially dependent on the deceased and have not received adequate provision in the will.
To succeed in a family provision claim, you must provide evidence of:
- The relationship between you and the deceased (e.g., parent/child, de facto partner, financially dependent friend).
- Your financial dependence on the deceased (e.g., housing, food, medical care, or other financial support).
- Your ability to support yourself: If you are unable to care for yourself due to age, disability, or other factors, this may strengthen your claim.
- The deceased’s intentions: Whether the deceased intended to provide for you financially but failed to do so in the will.
Family provision claims can be complex, and the outcome depends on your ability to demonstrate financial need and the deceased’s intentions. Learn more: family provision claims
The process of contesting a Will
What happens if a Will is challenged, and is it easy to contest a Will? Even if you are able to prove one or some of the above stated reasons for finding a Will invalid, it will not be easy getting the beneficiaries to agree to changing the distribution of the Will. It is highly likely you will have to file a claim with the Court to even begin the process of consideration. Therefore, you will need to be ready to take the following steps:
- Seek the advice of a lawyer; bring all of the evidence and information you have available to support your claim to your first meeting so that the solicitor can determine if the case is legally supportable.
- You will be required to participate in mediation with the beneficiaries and the Trustee of the Will.
- If you cannot come to an understanding that satisfies both yourself as the contester and the beneficiaries, you will have to take the claim before the Court.
- There are no guarantees that the Court will side with you even if you have evidence and are telling the truth.
- Accept that if your claim fails, it is very possible the Court will deem you responsible for the legal costs associated with bringing the claim.
Learn more: How to contest a Will
How long do I have to make a claim against a Will?
In NSW, you have 12 months from the date of death to contest a will. It is crucial to begin the process as soon as possible to avoid missing the statutory time limit. Delaying action may reduce your chances of success, so contacting a lawyer immediately after the death of a loved one is recommended. Contact Owen Hodge Lawyers today to understand your options and assess the success rate of your will contesting case at 1800 770 780.
Learn more: Contesting a Will time limit
Further information about contesting a Will:
If you need further assistance with contesting a will or want to better understand your rights and options, we can help. At Owen Hodge Lawyers, we specialise in estate disputes and will contest cases. Contact us today to schedule a consultation and assess the success rate of your will contest case in NSW.
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For expert legal advice and support, contact Owen Hodge Lawyers today at 1800 770 780 or schedule a consultation online. Let us help you navigate the complexities of contesting a will and protect your legal rights.