Contested Estates
If you believe a will is not valid or it should be challenged, it is important to get in touch with a lawyer to help you make your case.
At O’Sullivan Legal, our wills & estate lawyers are here to provide you with the support you need to make sure you and your family are treated fairly.
Speak to us today so we can understand more about your matter and assist you with the next steps.
Under what circumstances should you contest a will?
- The will has been forged or created under fraud, undue influence, or coercion.
- The will isn’t made in accordance with the formalities in the Succession Act 2006.
- The testator lacked testamentary capacity when the will was created, lacked knowledge and approval of the will, or revoked the will in their lifetime.
- You were financially dependent on the deceased and are eligible to make a claim.
- The provision left for you is insufficient to cover your reasonable maintenance and support and you can make a claim.
- The will fails to adequately provide for ex-partners, children from previous marriages, or children from de facto relationships.
- An intimate relationship between you and the deceased began after the will was made, and you are not adequately accounted for.
- You believe the will is grossly unfair in its distribution and you are eligible to make a claim.
- The deceased was not of sound mind when the will was made, raising questions about its validity.
- There is evidence that the deceased was unduly influenced by one or more beneficiaries when drafting the will.
- The will is unclear, contains ambiguities, or fails to properly reflect the deceased’s intentions.
What Do You Need to Contest a Will?
- Documentary Evidence: This can involve the will being challenged, any prior wills, correspondence between the deceased and their legal advisers, or other documents that clarify the deceased’s intentions.
- Witness Statements: Testimony from individuals who witnessed the signing of the will or had conversations with the deceased about their wishes can be invaluable in building your case.
- Medical Records: If the will is being challenged on the grounds of testamentary capacity, medical records and expert opinions on the deceased’s mental state at the time of drafting the will are critical.
- Forensic Evidence: In cases of suspected forgery, handwriting analysis or other forensic examinations may be necessary to verify the authenticity of the signatures or the document itself.
Who Can Contest a Will?
There are a range of people related to the individual who passed away who contest a will, such as:
- A spouse (wife or husband)
- A de facto partner
- A child (including an adopted child)
- A grandchild who was financially dependent on the deceased
- A household member of the deceased who was financially dependent on the deceased
- A previous spouse
- A beneficiary
- A person who was living in a close, personal relationship with the deceased at the time of their passing.
Family Provision Claims and Contesting a Will
A family provision claim allows eligible individuals to seek further provision from a deceased person’s estate if they feel they were inadequately provided for or left out of the will.
In NSW, these claims must typically be filed with the Supreme Court of NSW within 12 months of the date of death unless the court grants an extension.
Family Provision Claims and Contesting a Will
A family provision claim allows eligible individuals to seek further provision from a deceased person’s estate if they feel they were inadequately provided for or left out of the will.
In NSW, these claims must typically be filed with the Supreme Court of NSW within 12 months of the date of death unless the court grants an extension.
Defending a Wil
The grant of probate affirms the validity of a will as the deceased’s last testamentary wishes. If you believe the will is invalid or that the application for probate should not proceed, it is important to act swiftly, preferably before probate is granted. Once probate is issued, the executor gains authority to distribute the estate’s assets, which can complicate disputes.
Probate and Letters of Administration
When a person passes away, managing their estate often requires a legal document such as a grant of probate or letters of administration.
- Letters of Administration are issued when the deceased dies without a valid will (intestate) or if the named executor cannot act.
- Letters of Administration with the Will annexed may be required if the will exists, but an executor is unavailable or unwilling to fulfil their duties.
These applications are typically uncontested and decided by a Registrar of the Court, provided the deceased had assets in NSW.
Filing a Caveat
If you have concerns about the validity of a will or the grant of probate, you may file a caveat to temporarily halt the process. A caveat remains in effect for six months, ensuring no probate is granted until the issue is resolved. Filing a caveat is a crucial step for executors or beneficiaries who believe a different will is valid or who have a legitimate interest in the estate.
Let’s Resolve Your Estate Dispute Together
Contact us today to discuss your situation. Let’s protect your rights and interests.
Call Us Now: (02) 8114 4511
Visit Us At: Suite 15, Level 2, 123 Clarence St, Sydney NSW 2000
You can also fill out our online enquiry form to schedule a consultation.
Let us provide the clarity and support you need to resolve your contested estate matter effectively.
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