Common Mistake No. 1: Failing to Seek Professional Advice
A big mistake individuals make when contesting a will is not seeking advice from a lawyer that specialises in will disputes early on. While it may seem tempting to handle your matter on your own, even during the early stages, the legal intricacies and complexities associated with the Succession Act and Case Law make self-representation an insurmountable task which will do your case more damage than good.
An experienced lawyer that specialises in will disputes can provide you with crucial guidance from day one, for instance:
- Ensuring the estate is not distributed before your case is finalised (for example, by obtaining an undertaking from the executor’s solicitor that the estate will not be distributed pending resolution or determination of your claim);
- Explaining the different methods to dispute the will (hint: it might be in your interests to both challenge and contest the deceased’s last Will);
- Implementing a well-planned strategy to give you the best possible chance of success (hint: it is vital that you plan and implement the case strategy from day one);
- Guiding you throughout the process and explaining the steps involved so you always know what to expect;
- Reducing the risk of procedural errors that could harm your case or result in its dismissal or a poor outcome.
Common Mistake No. 2: Missing Important Time Limits
Another critical mistake to avoid is missing the strict time limits associated with contesting a will in NSW. The law imposes specific deadlines for initiating a claim in NSW, which is 12 months from the date of death.
Failing to meet these time limits may result in your claim being dismissed. Therefore, it is essential to consult with a will dispute lawyer promptly to ensure your claim is prepared and filed within the required timeframes.
Common Mistake No. 3: Insufficient Preparation of Evidence
The thorough preparation of evidence is a crucial part of contesting a will and presenting a compelling case. Failing to gather sufficient evidence, or preparing your evidence in a substandard manner, can weaken your case significantly.
Some common mistakes to avoid include:
- Not adequately addressing the criteria the Court considers when it decides whether to approve a Will contest claim (see criteria set out at s 60(2) of the Succession Act);
- Neglecting to issue subpoenas to discover important information or documentation that might be helpful for your case;
- Overlooking important documents or facts which may be helpful for your case;
- Failing to obtain affidavit evidence from friends or family members who can provide evidence in support of your case.
By working closely with a lawyer that specialises in contesting and challenging the validity of wills, you can be sure that all relevant evidence is gathered and properly presented. This is essential to give you the best possible chance of success.
Common Mistake No. 4: Avoiding Alternative Dispute Resolution
Most will dispute claims can be resolved through alternative dispute resolution methods, such as mediation or informal settlement conferences.
Some people make the mistake of focusing on litigation without exploring these options. Settling your claim through alternative dispute resolution methods can save you time, money, and emotional stress. Also, settling your claim out of Court, or during the early stages after commencement of proceedings, gives you certainty — unlike a hearing where the outcome of your case will be determined by a Judge (remember, there is no such thing as an unlosable or unwinnable case, despite how strong you might consider your case to be).
Engaging in meaningful discussions and considering settlement options at all stages of your claim, including via participation in alternative dispute resolution methods, can lead to good outcomes for all parties involved.
Conclusion
When contesting a will in NSW, avoiding common mistakes can significantly impact the outcome of your case. By seeking advice from an experienced will dispute lawyer early on, adhering to time limits, gathering sufficient evidence, and exploring alternative dispute resolution methods, you can navigate the process more effectively and give yourself the best possible chance of success.
