Contesting a will in New South Wales requires applying to the Supreme Court and making a family provision claim.
A family member can contest a will if they feel they are not adequately provided for or not included in a will. The family provision claim is made in New South Wales if the deceased person stayed and died with assets owned in NSW or if the deceased lived elsewhere but owned assets here. The Supreme Court investigates the relationship between the deceased person and the applicant, their relationships with other eligible applicants and property size. Adequate provision varies from case to case, which is difficult to determine and is a complex process.
Eligible applicants listed in the Succession Act 2006 (NSW)‘s Section 57 are listed below.
Current spouse and former partner(s) of the deceased person at the time of death.
Any relatives of the deceased.
Children and grandchildren of the deceased.
Anyone who was partially or completely dependent on the deceased at some point.
Family members living in the house of the deceased.
A person with a personal and close relationship with the deceased during their death.
Any sibling(s), parents, former partners or stepchildren would be eligible applicants if they were dependent on the deceased during their death, which is not included in the act.
The average cost of contesting a will, if the case stays out of the court, will be between $5,000- $10,000. A case going through court hearings will cost from between $20,000 to $100,000 or more, depending on the complexities. The average cost of the family provision claim, finalised through mediation, is approximately $30,000. If the case goes to the court, it will cost approximately $50,000 or above. In New South Wales, the will contesting charges vary from case to case depending on these factors:
If the executor is open to negotiating the settlements, the expense can reduce.
The claim amount can cause a massive change in the final costs.
Any complications, their extent and nature will always govern the final cost.
A solicitor can charge between $300 and $500 per hour. Always check for any hidden charges in their fee structure. Ensure you know which services are included in their fee. The expenses incurred in contesting the case can be reimbursed by the deceased’s estate if the applicant wins it. Sometimes, law firms charge their service fee only if their client wins the case.
Some people believe the cost incurred on proceedings is covered by the estate irrespective of the result. But the judge has the right to make orders regarding the costs of the proceedings, and the beneficiary should be aware of who is liable to make the payments. The estate will pay for the standard charges of the applicant only if the judge makes such a provision. In case the judge makes no such provision, and the case is unsuccessful, the court will order the applicant to pay the executor’s fee. If the estate has less than $500,000 for distribution, the judge can make a provision for capping the charges, which might be recoverable. The judge might do so since there is a fixed amount of assets in a family provision claim for distribution among the beneficiaries. The justice might make additional orders as follows:
The estate needs to pay the expenses for defending the claim.
An unsuccessful application’s cost has to be paid by the applying person.
The applicant bears the defendant's fee for an unsuccessful case.
The estate will bear a successful case's cost.
In addition to these general orders, the court might make any more orders based on the case that deems fit.
The most common grounds for contesting a will are outlined below.
If the will appears to be unfair and unjust, then any eligible person can challenge it. Other considerations include a person not being included in the will even after being dependent on the deceased or not inheriting the will, even if eligible for it. The court is fair and does not tolerate injustice. However, always remember that all cases are different, and the court keeps relevance in mind.
Applicants can claim (depending on the proclamation) that the deceased was not in a normal mental state to undergo a complex will writing procedure and it was not authorised to do so. Any document, will, or testament written by those under 18 is invalid in New South Wales. Those with mental illness are not automatically considered incapable. Proving that the person lacks the requisite mental ability when challenging a will, is done by providing medical history records or the testimony of people observing the testator while making the will.
The belief that the testator was not taking action on their free will leads to the challenging of the will, taking into account the following:
Hiding relevant information and facts, providing false documents or statements and misleading the testator or other concerned person.
The person to be benefited by the will physically abusing the testator.
Use of someone trusted or close to the testator to influence when writing the will. There should be no undue influence during the making of the will.
You should challenge a will within 12 months from the date of death of the deceased in NSW. However, the time limit can increase by giving satisfactory excuses. you should contact the solicitor before time and not close to the deadline for a smooth process. Claiming a will while grieving is, complicated but the applicant should opt for legal help. The applicant should take action before the executor has the time to distribute everything among the beneficiaries. It will be troublesome for the claimant to claim if the assets are already distributed. Distribution of assets before the claimant gets a chance to make a claim will make things complex for them, especially if the assets are already in use. The required time for contesting a will vary from a few months to a few years, depending on the willingness of parties to enter a settlement and the case's complexity. If the two parties enter a negotiation to end the matter quickly, the case can be sorted outside the court. Cases settlement consumes months or years due to complexity, and the judge wants to ensure justice and protect the applicants. The challenge a person has is to prove to the judge that the will maker did not realise the following:
The actual value and size of the assets.
The distribution process of their properties and estates.
People to be supported or included in the will.
Result of excluding or including people in their will.
It was influenced by alcohol or drugs (no undue influence of alcohol or drugs).