Will Dispute Lawyers Sydney.

Frequently Asked Questions

What does it mean to dispute a Will?

There are three methods to dispute a Will in New South Wales:

1. Family Provision Claim (also known as Will Contest or Will Dispute)

If you do not receive any benefit in a Will or if you receive inadequate provision to meet your needs, you may consider making a Family Provision Claim to obtain provision or a larger share of the deceased’s estate.

2. Will Challenge

If you believe the circumstances that led to the creation of the Will are suspicious, you may consider challenging the validity of the Will.

You would only do this if you receive a larger share of the estate in an earlier Will or under intestacy (i.e. the laws which dictate how an estate is distributed when there is no Will).

3. Family Provision Claim + Will Challenge

If you are eligible to make a Family Provision Claim and you believe the circumstances that led to the creation of the Will are suspicious you may consider making a Family Provision Claim and challenging the validity of the deceased’s Will.  The Family Provision Claim may act as insurance in the event you are unsuccessful in Challenging the validity of the Will.

Are you unsure if you should make a Family Provision Claim, Challenge the Will, or do both? Get in touch with PB Ritz Lawyers today.

Can I make a Family Provision Claim?

If you meet one or more of the following criteria, you are eligible to make a Family Provision Claim:

• You are a spouse or former spouse of the deceased’s person; or
• You were the deceased person’s de facto partner at the date of his or her death; or
• You are a child of the deceased person; or
• You: (A) are a grandchild of the deceased person, and (B) you were wholly or partly dependant on the deceased person at any time; or
• You: (A) lived in the deceased person’s home, and (B) you were wholly or partly dependant on the deceased person at any time; or
• You were in a close personal relationship with the deceased person at the time of their death

Are you unsure if you are eligible to make a claim? Speak to our team today to learn more.

Can I still make a Family Provision Claim if I have been left something in the Will?

Yes, you can.  The Court is empowered to make orders for further provision from an estate, so being a beneficiary does not prevent you from making a claim.  The value of the gift received under the Will is a relevant consideration for the Court when it determines whether the provision made in the Will was inadequate.

There are no assets in the estate apart from jointly owned assets and superannuation, can I make a Family Provision Claim?

Jointly owned assets and superannuation may be available for distribution to a successful claimant by having those assets clawed back into the estate and designated as ‘Notional Estate’.

How long do Court proceedings take after I have commenced proceedings?

Most Will dispute proceedings in Sydney are settled prior to the final Court hearing within 2 to 3 months after proceedings are commenced.  If your case is not settled, generally a final Court hearing will take place about 9 to 12 months after the Will dispute proceedings are commenced.

Do I have to attend Court?

You will only need to attend Court if your Will dispute case proceeds to a final Court hearing.  As leading Will dispute lawyers about 95% of our cases settle out of court either before, during or after the compulsory mediation stage, so chances are you will not need to attend Court.

What is the compulsory mediation?

About 3 months after Will dispute proceedings are commenced in Sydney the Court will schedule a compulsory mediation.  The mediation is attended by the plaintiff (you), your legal representatives (us), the executor, and the executor’s legal representatives.

The mediation presents an opportunity for you to settle your case without needing to attend a final Court hearing.  As this is a faster and more cost-effective method to finalise your claim, as your Will dispute lawyer, we’ll always aim to settle your claim at the mediation.

Is there a time limit for making a Family Provision Claim in NSW?

Yes, you have 12 months from the date of the deceased’s death.

What if I’ve missed the deadline to make a Family Provision Claim in NSW?

You may be able to obtain an extension if special circumstances apply. These may include:

• Not knowing the person had died;
• Not knowing about the time limits for making your claim.

If you’ve missed the deadline for your family provision claim, don’t panic – we can look into your case and advise how to proceed. We’ll be with you throughout the entire process.

What happens if the deceased did not leave a Will?

When this happens (called dying “intestate”), the property of the deceased is distributed according to special rules set out in the Succession Act 2006 (NSW).

The problem with this scenario is that it can result in an unfair split, as the rules don’t consider individual circumstances.

Can you tell me what my Family Provision Claim is worth?

Once our Will dispute lawyers understand the facts of your case, we’ll be able to provide you with more information regarding the strength of your claim, including a potential range of what your claim could be worth.

What things will the Court consider in Family Provision Claims?

When a person prepares a Will, they are free to leave their estate to whomever they please. However, the Court also recognises that in certain situations, Will-makers have a responsibility to provide for certain people not included in their Will.

Below are some of the factors the Court may consider when it assesses your Family Provision Claim.  These factors also help your Will dispute lawyer to determine the potential range of what your claim could be worth:

• The nature of the relationship between you and the deceased;
• The relationship between the deceased and any other beneficiary;
• Whether you made contributions to build up the estate (without sufficient repayment);
• The size and nature of the estate;
• Whether the deceased made any promises to you;
• Your health and the health of any other beneficiary;
• Your financial needs and the financial needs of any other beneficiary.

I live in a different State to the deceased person – will this affect my Claim?

You don’t need to live in the same state as the deceased in order to dispute their Will.

The law which governs the deceased’s estate is the law of the State where the deceased left property when they died.  So, for example, if the deceased owned property in New South Wales, it doesn’t matter whether you live in NSW, in another state, or even overseas – you can still make a Family Provision Claim in NSW.

Our Will dispute lawyers in Sydney have acted for clients-based Australia wide and overseas.  Wherever you live, we can help you with your Family Provision Claim.

How can I obtain a copy of someone’s Will?

If you are unsure if you’ve been included as a beneficiary in someone’s Will, we recommend you contact the Executor (the person responsible for administering the estate) or the solicitor acting for the estate, to request a copy of the Will.  Alternatively, your will dispute lawyer at PB Ritz can make this enquiry on your behalf.

In New South Wales, you are entitled to inspect or receive a copy of a deceased’s persons Will if you are:

• Named or referred to in the Will;
• Named or referred to in an earlier Will as a beneficiary;
• The surviving spouse, de-facto partner, or child;
• The parent or guardian of the deceased;
• Entitled to a share if the deceased died intestate (i.e. without a Will);
• A parent or guardian of a minor referred to in the Will (or who would be entitled to a share if the person died intestate);
• A person/creditor who may have a claim against the deceased’s estate;
• A person who managed the deceased’s personal estate immediately before death;
• An attorney under the deceased’s enduring power of attorney.

I need to dispute a Will, but I can’t afford a lawyer – how can you help me?

We represent many of our Will dispute clients on a ‘No-win, No-fee’ and ‘Deferred fee’ basis.

Do you act on behalf of executors in defending an estate?

Yes, our Will dispute lawyers also assist executors to defend claims.  If you are an executor faced with the important task of defending a Will dispute claim, our Will dispute lawyers can help.

How do I challenge a Will?

If you have concerns about the validity of a Will, it is critical to get advice as early as possible to protect your interests.

A document that purports to be the deceased’s Will can be challenged if:

• the Will is a forgery;
• the will-maker did not have the required mental capacity to make the Will;
• the will-maker did not know or approve of the contents of the Will; or
• the Will was procured by the undue influence of another.

Each ground requires different facts to be established and thresholds of proof that must be met to succeed. We can provide you with legal advice on your specific circumstances at an initial consultation.

If a Will is held to be invalid, the estate will be distributed in accordance with the next most recent valid Will or distributed in accordance with rules of intestacy.