17 August 2017

Challenging a Will in New South Wales

Challenging a will in New South Wales typically follows a number of predictable steps. Of course, each and every situation is unique and you should consult a lawyer about the details of your own particular circumstances. Nonetheless, the following will give you an idea of what you might usually expect.

The first stage of challenging a will is to declare that some portion of that will is not fair. That is, the deceased should have made provisions (or further provisions) for you on his or her death.

In cases in which the deceased has made no will prior, a challenge may also be brought to the court declaring that the deceased should have (or intended to) make a provision for you.

Typically, these types of claims are considered to be “family provision claims.”

Family Provision Claims

Family provision claims apply to wills that are claimed to be unfair rather than wills that are considered invalid altogether. Bear in mind that the definition of family provision claim may vary from state to state, although every state has some version of it.

How Soon Must a Claim Be Made?

In NSW, the claim should be filed within one year of the deceased’s passing. If this isn’t possible, it’s advisable to consult with a lawyer in order to apply for an extension. Frequently, the court will grant an extension.

While the claim cannot be brought prior to the will being in probate, you should immediately consult with a solicitor if more than 12 months have passed without probate being granted. If this is the case, there are methods that can ensure that the claim is filed even without probate.

What Happens When a Claim Is Made?

The usual first step in making a claim is having your solicitor draft a letter to the estate. Not all will disputes are required to be settled in court. Mediation with the estate’s executor may lead to a resolution at this stage.

If the estate is not willing to settle, however, the court requires an application, which your solicitor can file. Depending on the amount that you are claiming, your lawyer will file with the District or Supreme Court.

Who Is Eligible to Bring a Claim?

There are a number of eligible persons who can bring a claim against a will. Spouses, children, former spouses, dependents, household members, and close personal friends may all be considered eligible to bring a claim.

Some of these categories are more flexible than others. A spouse may refer to someone who was legally married to the deceased or it may refer to a de facto spouse. Household members need not have been living with the deceased at the time of his or her death. And close personal relationships can be open to interpretation.

What Can You Claim?

While you may only be able to claim certain assets, the categories of these assets can be quite broad. Your solicitor must, however, establish that the assets you are claiming were a part of the deceased’s estate and held solely in his or her name. Jointly-owned assets cannot, generally speaking, be part of a claim.