Well-written wills are meant to set out how one wishes their estate to be dispersed after they die. However, the circumstances surrounding wills are commonly fraught with dissatisfaction by family members, parties involved or someone who expects to benefit more from a deceased person’s will.
A challenge that may arise over the will of a deceased person is a highly sensitive matter. The aim of a will challenge should be to bring about a fairer distribution of the deceased’s estate. Such results are possible using experienced and skilled estate lawyers who know the rules and court proceedings involved.
NB. In NSW, you have 12 months from the date of the will-maker’s death to lodge a family provision claim in court.
General Success Rates of Estate Disputes
The most recent formal study in Australia into family provision claims and the success rate of contesting a deceased person’s will was carried out in 2015. Researchers at the Queensland University of Technology, University of Queensland, and Victoria University found the following:
- Family provision claims had a 74 percent likelihood of success.
- This figure rose to 77 per cent for Queensland-based claimants.
- The will was changed in 87 per cent of those cases that went before a mediator.
A successful will dispute case usually leads to a probate court order that modifies or cancels asset distribution. However, if the claim is unsuccessful, the person claiming family provision can be left with nothing, leaving the one who has lost a loved one in considerable pain and mental strain.
“Eligible Persons” & Family Provision
Under the Succession Act 2006 s57, an “eligible person” may apply to the Court for a family provision order in NSW:
- The current or former spouse of the deceased person.
- A de facto partner who was dependent on the deceased person.
- The child or grandchild of the deceased person or someone who was wholly or partly dependent on or part of the deceased’s household.
- A person who was living in a close personal relationship with the deceased person.
The success rate of contesting a will and claiming family provision may be higher if you seek legal advice. Suppose you are a family member deemed an “eligible person” under the law who believes they have been unfairly treated in the will of a deceased person. In that case, your success rate is likely to be higher if you seek legal advice from experienced estate lawyers such as those at the NSW Wills & Estate Disputes Helpline.
Grounds For a Will Dispute in NSW
As mentioned above, anyone who is contesting wills must be deemed an “eligible person”. They must prove that they deserve adequate provision and that the will-maker was subjected to coercion, undue influence, constraints, or threats. In NSW, you can lodge a family provision claim in the Supreme Court and contest a will if the following applies:
- If you have clear evidence of the deceased’s intention to provide for you. Such evidence may include letters, statements, or text messages.
- The deceased’s will is deemed incomplete, invalid, signed under suspicious activity and therefore contestable.
- If the will-maker did not have the mental capacity to write or sign their will.
- The courts will look at your need for extra provision from the deceased’s estate based on your financial, physical and psychological state and needs. It will also look at your relationship with the deceased.
To increase the likely success rate of contesting a will, we recommend that you seek legal advice.
Why You Need Lawyers to Help Contest a Will
Challenging a will is more demanding than most people think, and they often don’t realise how to increase the success rate of contesting a will. Given the complicated nature of will challenges, you must have solid grounds to contest a will since there are many pitfalls.
The proof brought before the courts must be solid and abundantly clear, so you need experienced and knowledgeable lawyers such as those at the NSW Wills & Estate Disputes Helpline. With our support, we can help gather evidence, check your proof and advise you on the steps necessary to increase your chances of success.
Most Will Disputes are Settled Out of Court
This is true; most will disputes end on the court steps, but if all parties can’t agree, the case will be brought before a judge for a decision. Alternatively, if someone dies without having made a will, their estate is dispersed according to a formula outlined in the Succession Act. This commonly means the deceased’s spouse is entitled to the whole estate, provided no children are to be considered.
Call the NSW Wills & Estate Disputes Helpline
For clear, honest, expert legal advice about contesting a will, our lawyers at the NSW Will & Estate Disputes Helpline offer assistance in a wide area. Such areas include contesting a will on the grounds of lack of testamentary capacity, undue influence or other bases. We also help in cases where there are asset distribution disputes and challenges to a will’s validity, disputes regarding executors and the interpretation of a will. We can assess whether or not you are likely to be deemed an “eligible person” and offer advice on the success rate of contesting will.
Contact the NSW Wills & Estate Disputes Helpline today to discuss legal costs and let us help you resolve your will challenge so you can get on with your life.
