How to Contest a Will

When somebody close to you dies, and you feel you have been unfairly left out of the estate, you will need to know how to contest a will. 

There are several steps involved in contesting a will, and they must be completed within the NSW time limit to be considered by a Court.

Not everybody can contest a will and interested parties have to meet specific requirements to make a claim.

Contesting a will can be a complicated legal process with differing laws across Australian states.

If you believe you are eligible to make a claim, you should make contact with a qualified lawyer as quickly as possible

Am I eligible to contest a will?

The first thing you should check when wanting to know how to contest a will is, if you are an eligible person.

People who are considered eligible to contest a will in NSW include the following:

  • The wife or husband of the deceased at the time of death;
  • Any person who was in a de-facto relationship with the deceased at the time of death (includes same-sex relationships);
  • Children (adoptive and birth) of the deceased
  • Ex-wives or husbands of the deceased
  • Grandchildren or member of the household of the deceased who have at some time been dependent (wholly or partly) on the deceased;
  • Any person with whom the deceased was in a close personal relationship at the time of death

Grounds for Contesting a Will

The second thing you will want to know when you ask, how to contest a will, is if you have sufficient grounds for contesting a will.

Anybody considered an interested or eligible party, must also have reasonable grounds for contesting the validity of a will. In NSW, a will cannot be challenged simply on the fact that you feel it is ‘unfair’.

In NSW, a will can be contested on the following grounds:

  • The will is not an accurate reflection of the deceased’s (testator’s) true intentions
  • The will excludes those who were financially reliant on the will-maker at their time of death or excludes someone who should have been provided for.

The most common reason a contest to a will goes ahead is on the basis that the testator was not acting freely at the time they made their will. There can be several reasons for this, including the will-maker being unduly influenced by somebody else or being a victim of fraud.

In cases where the will excludes someone who was financially dependent on the will-maker at their time of death, they will usually want to know how to contest a will, and then they will file a family provision claim.

How long do you have to contest a will in Australia

The time limits on contesting a will in NSW are as follows:

  • For deaths on or after 1 March 2009 the time limit is within 12 months of the date of death (previously 18 months)
  • If the date of death is uncertain, the Court will determine a reasonable time or date

It is unusual for the Court to budge on these time limits, so it’s essential to speak to a lawyer as soon as you believe you have a claim to contest a will.

3 Steps on how to contest a will 

While the steps for contesting a will may vary slightly in individual cases, the process will be similar for most people.

  1. The first thing to do it to confirm the above-mentioned points: you are eligible to contest a will, are within the time limit for your state and have legal grounds for making a claim.
  2. Secondly, you should assess whether you can prove that you ‘need’ the money, particularly in comparison to other potential beneficiaries.
  3. If you still think you have grounds to contest the will, you should talk to a lawyer who can verify the legitimacy of your case. From here, your lawyer will begin the process of formally contesting the will.

They will investigate the estate, which usually involves sending the executor a letter requesting relevant information about the estate.

Your lawyer will look over the will and establish the various assets and liabilities held by the estate.

They will prepare a series of documents including a written statement about your involvement with the deceased, your current finances and state of health.

Your lawyer will then contact the executor of the will, and in many cases, the executor will then make an offer to settle.

how to contest a will3 Ways Your Claim Can Be Resolved

There are three ways in which your claim can be resolved: by agreement, through mediation or via a hearing.

The first is when the executor makes an offer to you via your lawyer, and you come to an agreement to settle. For example, the executor may offer you a set amount of money to drop your claim. If you accept their offer, a contract is drawn up to detail how and when you will receive the payment. Resolution by agreement avoids the need to go to Court and can save time and stress for everyone involved.

The second way your claim can be resolved in via mediation. Mediation involves yourself and your lawyer sitting down with the other party and a neutral party (the mediator) in an attempt to come to an amicable agreement. Again, if you settle your claim during this process, you won’t have to attend Court. The vast majority of cases settle before or during the meditation process.

The third and final option in settling your claim is to go to Court. The decision as to how much you will get from the estate will be decided entirely by the judge overseeing your case. Court cases are often costly, stressful and drawn out, so try and settle by agreement or mediation if you can.

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