Will Disputes

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Will Disputes – Will Disputes & Family Provision Claims In NSW

This page provides details regarding the complexity of will disputes within the area of Family Provision Application

Will Disputes and Family Provision Claims in New South Wales
Will DisputesFactors in will disputes
Will Disputes
What you need to know about contesting wills (Sydney)

If you believe that you are not being provided the correct provisions under the will of a deceased relative, you may be entitled to take action as allowed by the law for contesting wills. Sydney, as part of NSW, is governed by a set of laws separate to other states, so it’s worth taking a moment to read the below information about contesting wills in Sydney to understand better if you may have a claim. Then contact your lawyer at State Lawyer for further information on how to proceed if you think you have grounds to contest.

Involved in a will dispute? Sydney locals can come to State Lawyers for expert advice in contesting wills. If you believe that you are not being provided the correct provisions under the will of a deceased relative, you may be entitled to take action as allowed by the law for contesting wills. Sydney, as part of NSW, is governed by a set of laws separate to other states, so it’s worth taking a moment to read the below information about contesting wills in Sydney to understand better if you may have a claim. Then contact your lawyer at State Lawyer for further information on how to proceed if you think you have grounds to contest.

When it comes to contesting a will, Sydney’s State Lawyers are the experts in understanding the unique situations of each will dispute, and then determining the best course of action for their clients to take. We fight hard for our clients as allowed within the law for the best results, and we can be relied on to explain the process clearly every step of the way. If you do have a will dispute, Sydney’s CBD, where we are located, is easy to reach for all, and our team of expert lawyers is always on hand to listen to your unique circumstances.

Who can bring a contested claim?

With regards to will dispute, Sydney and NSW:

Generally speaking a person can bring a claim to contest a will if all three of the following points are satisfied:

i) the claim is brought within 12 months of death (unless the court gives leave);

ii) the person can establish that they’re an ‘eligible person’ as defined under section 57(1) of the Succession Act 2006 (NSW);

iii) with respect to certain provisions (s.57(1)(d),(e) & (f)), whether the person can establish that there are ‘factors warranting’ a change to certain provisions of the deceased’s will.

Legislation in NSW

The key legislation that we apply to all cases of will dispute, Sydney, is the Succession Act 2006 (NSW)

Making a Will
  • A will is a legal document that dictates what happens to your estate (assets and belongings) when you pass away. A will states the beneficiaries (people who are to receive your estate) which are likely to receive your estate when you pass away. An executor is named in the will and their primary job is to administer your estate based on the terms in the will.
  • A will is an important legal document that needs thought and planning beforehand and is essentially the only reliable method to ensure that your estate is given to the people that you have named in the will when you pass away.
  • If a person dies without a will then the Court decides how your estate is distributed and this is done under a strict legal formula. The Court will appoint an executor who will distribute your will based on the legal formula.
  • In order to make a valid will the following criteria are necessary:
    • You must be at least 18 years old;
    • You must be of sound mind;
    • The will must be writing;
    • The will must be signed by yourself in front of 2 witnesses who both have to be over 18 years old. The witnesses must also be of sound mind and cannot be a beneficiary under the will and must be signed by those witnesses.
    • The will must be dated and signed at the bottom of each page in the will.
  • State Lawyers takes into your account your personal circumstances when making a will such as the current assets owned.
  • When you make a will it is imperative to keep the will up-to-date. At State Lawyers we can assist you in updating your will based on your individual circumstances. The following situations may mean that you might need to update your will:
    • If you start a de facto relationship;
    • If you get married;
    • If you get divorced;
    • If you end a de facto relationship;
    • If your financial situation changes;
    • If a beneficiary under the will passes away;
    • If you retire; and
    • If you want to include additional people under the will or exclude specific people already under the will.
Factors in will disputes
Who is an eligible person?

Under the Succession Act, pursuant to section 57(1), defines an ‘eligible person’ as:

1. The following are “eligible persons” who may apply to the Court for a family provision order in respect of the estate of a deceased person:
(a) a person who was the wife or husband of the deceased person at the time of the deceased person’s death,
(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
(c) a child of the deceased person,
(d) a former wife or husband of the deceased person,
(e) a person:
(i) who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member

What is incorporated in a will dispute?

A will dispute is becoming more prevalent in society as individuals are increasingly more common due to the complexities surrounding Australian families. State Lawyers understands that every Australian has a right to make a will and a right to decide who they want to inherit that will. However, it is important to note that there are laws to protect people who are unfairly treated under the will and subsequently entitled in the will.

A will dispute is essentially an individual challenging a valid will under certain situations, the following grounds are reasons as to why a party may challenge a will:

  • The person lacked sufficient mental capacity or understanding to draw the will up;
  • The family members were not made aware of the provisions of the will as the proper actions were not taken to inform them;
  • There was unconscionable conduct that influenced the will maker by another person;
  • The will was not properly executed or there was evidence of tampering; and
  • There was another will that was drawn up by the deceased.

Will disputes are complex matters due to the inherit individualistic nature of each matter which is why it is now even more important to retain a lawyer with experience in the field. State Lawyers is an established firm in the legal industry which has a great reputation in resolving will disputes.