Contested Wills & Estates

10 Things You Need to Know WhenContesting a Will in NSW

2014

By Warwick Gilbertson, Partner

Legal Disclaimer

This presentation is offered for general information

purposes only. It does not constitute specific legal

advice or opinion. You should not act or rely upon any

of the information contained within this seminar

without seeking the advice of a qualified solicitor who

specialises in the particular area of expertise and

jurisdiction that you require.

1. What does ‘Contesting a Will’ mean?

You can contest a valid Will if it contains inadequate provisions. If the Court finds in your favour it can either vary the provisions or order the redistribution of the Estate.

1. What does ‘Contesting a Will’ mean?

You may also contest the Will if the person died without making a Will at all. A person who dies without a Will is said to have died "intestate’’.

1. What does ‘Contesting a Will’ mean?

A Will can also be contested if it is found to be invalid (e.g. forgery). To test the validity of the Will you must mount a ‘challenge’ to the Will.

2. Am I an eligible person?

Spouses

If you are the surviving spouse of a person who has passed away you are eligible to contest. You are a person’s spouse if you were their wife or husband at the time of their death.

Former Spouses

As a former spouse you are eligible to contest.

2. Am I an eligible person?

De Facto Partners

If you were living in a de facto relationship with a person when they passed away you are eligible to contest. This includes those who were in same sex relationships.

2. Am I an eligible person?

Children

If you are a child of a person who has passed away you are an eligible person who can contest. The term ‘child’ includes adult children, children under 18 years, as well as adopted children.

2. Am I an eligible person?

Step-Children

In NSW being a step-child does not, of itself, make you eligible to contest. However, you might still be eligible if you were dependent on the person who has passed away.

Grandchildren

If you were wholly or partly dependent upon the person who passed away at any time and you are their grandchild you are eligible to contest.

2. Am I an eligible person?

Members of Deceased’s Household

If you were wholly or partly dependent upon the person who passed away at any time and you were a member of that person’s household at any time you are eligible to contest.

People in Close Relationships with Deceased

If you were living with a person when they passed away and you had a close personal relationship with them you are eligible to contest.

3. What if I am not eligible?

If you are not an eligible person, then you have no entitlement to 'Contest a Will'.

However, you may still be in a position to 'Challenge a Will' or bring other 'Will Disputes' to the table.

The best way to find out whether or not you are eligible is to simply give us a free call on 1800 707 222 and we'll provide an accurate assessment of your unique case.

4. Is there a time limit?

Yes, there is a time limit to dispute a Will.

If the person died on or after 1 March 2009 you have 12 months from the date of their death to make a Will dispute claim.

Legal advice should be sought as soon as possible after the death. Urgently seeking legal advice will ensure that your rights are protected.

5. What if the time limit has passed?

If there are special circumstances you may be able to obtain an extension of the time limit to contest the Will. Special circumstances in Will Dispute cases include situations where:

You legitimately did not know the person has died. You did not know you had to make a claim within the

time period. You have received serious threats and have some proof

of those threats.

6. What does the Court consider?

In determining whether you should be entitled to receive provision from a Will the court considers the following factors:

1. Whether any provision you have already received is adequate for your proper maintenance, education and advancement in life.

2. Competing claims of other eligible persons or beneficiaries.

6. What does the Court consider?

3. The nature and duration of your relationship with the person who has passed away.

4. Your financial resources and earning capacity.

5. The size of the estate. For example, you may have a very strong claim on the grounds of relationship and need, but if there is only $20,000.00 in the estate, then there is very little scope for a Court to order provision.

6. What does the Court consider?

6. The financial circumstances of people you cohabit with.

7. Contributions you made, both financial and non-financial, to the person who has passed away.

8. Any provision the deceased person made for you during their lifetime.

6. What does the Court consider?

9. Aboriginal or Torres Strait Islander customary law (where relevant).

10. Certain categories of eligible persons must establish that their relationship with the deceased person was such that they ought naturally to have been a beneficiary.

11. Any conduct that you might have engaged in which would naturally not make you a beneficiary (fraud, etc.).

7. What assets do I have claim to?

You might be able to claim upon assets which do not strictly fall into the deceased person's estate. Such assets are known as “notional estate”.

The following are examples of “notional estate”:

The deceased person gave an asset away, or sold it to someone for less than its value, within three years of the death;

The deceased person had superannuation or life insurance; The deceased person held an asset (such as a house or bank

account) jointly with another person; The deceased person made a loan to someone and forgave the

loan on their death, or within three years of their death.

8. How much will I get?

There is no way of knowing how much you could be entitled to when you dispute a Will. If you are an eligible person, among other things, the Court will be looking to make sure you received adequate provision.

In determining whether you received adequate provision the court will have regard to the money you need for proper maintenance, support, education and advancement in your life.

8. How much will I get?

If you would like an estimation we would be happy to have a chat to you over the phone and discuss, at top level, the outcomes of related cases in which people in similar situations have contested, challenged or disputed a Will.

Call us for free on 1800 707 222 or email us:

enquiries@turnbullhill.com.au

9. How does the Court determine need?

One of the factors that the Court uses to determine whether you should be entitled to receive provision from the Will is whether you (as an eligible person) have 'need'.

To determine need the Court initially considers whether your day-to-day maintenance, education and advancement in life have been provided for adequately under the terms of the Will of the deceased.

9. How does the Court determine need?

The Court will then take a look at your current situation by reviewing your:

Finances (inc. debt, mortgage repayments, etc.) Medical Expenses (inc. current & future) Education Needs (inc. needs of your children) Vehicle Expenses (owned or on a loan) Rental Situation Employment Situation (inc. salary, length, etc.)

9. How does the Court determine need?

The Court will review your current situation as a whole and make a decision on whether the deceased's Will should be altered to make further provision for you.

9. How does the Court determine need?

Establishing need is not a straight forward process and the Court's decision is dependent on a wide range of factors. For example, if you are healthy, have stable employment, your children go to a private school and you own the majority of your home, it is unlikely that a Court will identify that you have need.

In any case, we recommend giving us a call to discuss your situation, as every situation is different. We'll be able to advise you if you have an adequate level of need.

10. How much does it cost to Contest?

Determining how much it will cost to bring your claim is very difficult. Your costs will vary depending on factors such as:

How willing the executors are to negotiate. Whether there are

complicating factors. The type of claim

you are bringing.

10. How much does it cost to Contest?

During your free appraisal with us, we will ask you a series of questions that are designed to provide us with an understanding of your unique situation.

We will then be able to determine the best course of action to take. At this stage we will also be able to provide you with an indication of the costs involved in pursuing that course of action.

We will be able to give you a better estimate of costs when we have a clearer understanding of your situation.

10. How much does it cost to Contest?

We believe that your financial position should not prevent you from making a claim.

In line with this philosophy, we perform most of our work on a ‘No Win, No Fee’ basis.

Under this arrangement, payment of your legal costs are delayed until the successful outcome of your Family Provision Claim.

Turnbull Hill Lawyers – Contact Us

If you have any further questions about contesting, challenging or defending a Will in NSW, please do not hesitate to call Warwick Gilbertson on:

1800 707 222 or email him

We will endeavour to respond to your enquiry within 24 hours.