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Challenging a Will

Updated: May 19, 2020

The legislation that deals with contesting Wills in New South Wales is the Succession Act 2006 (“the Act”)

Eligible Person

Before you make a claim you must be able to show that you are an eligible person under the Act

The term eligible person includes ;

  • a spouse or former spouse

  • a defacto or ex-defacto partner (including same sex relationships)

  • a child of the Deceased

  • a grandchild who was wholly or partially dependent upon the Deceased (this dependency does not have to be at the time of death)

  • a person who was living in a close personal relationship with the Deceased at the time of death

Adequate Provision

Just because you are an eligible person doesn't mean your claim succeeds, it just gives you the right to make a claim. If the matter proceeds to a Court hearing, you would need to satisfy the Court that you have not received adequate provision for the proper maintenance, education or advancement in life from the Deceased's Will. There are many cases about what exactly the phrase adequate provision means. The legislation itself gives only general guidance so it has been up to the Courts to interpret then apply the meaning.

There are numerous different fact scenarios that come before the Court and the outcome will largely depend on the particular facts of the case.

The sort of matters that are relevant in assessing the case include:

  • The circumstances of other eligible persons or beneficiaries under the Will.

  • The nature and duration of your relationship with the Deceased.

  • Your circumstances including your financial resources, earning capacity and your health.

  • The size of the estate.

  • Any contributions you made both financial and non-financial to the Deceased in their lifetime.

  • Any provisions the Deceased made for you during their lifetime.

It is by considering all of the facts surrounding the case that a determination can be made as to whether adequate provision was provided in the Will or if it should be altered and if so how it should be altered.

Time Limit

The Act provides that any claim must be made within 12 months of the date of death. There are limited circumstances where the Court may allow a claim to be brought after this time.

The Steps

1. Free Assessment

In our initial consultation we will assess your potential claim and provide our honest opinion in regard to its likely success.

2. Preparation

If you decide to engage us to proceed we will then commence preparing the matter. We will prepare a full and comprehensive statement from you and any other relevant person.

3. Negotiation

Once we have prepared a strong case with the supporting evidence, we advise that settlement negotiations be entered into with the other party. The benefit of settling at this stage of the process is that you save legal costs and avoid the delay and stress of legal proceedings.

4. Court Mediation

If the matter can not be settled by negotiation the we will file the documents necessary to commence Court proceedings. The Court will order that the parties attempt settlement by mediation. Unlike negotiation, with mediation the lawyers and clients are assisted in attempting to resolve the matter by a mediator. The vast majority of cases are settled at mediation. If the matter is settled, then the parties enter into and sign Consent Orders which are then filed with the Court for approval.

5. Court Hearing

If the matter cannot be settled then it will proceed to a hearing and will be heard in the Supreme Court.

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