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5 Myths About Contesting A Will In NSW

Succession is a complex field of law in Australia, particularly because the rules vary according to the specific state or territory. Consequently, misinformation can circulate and become widespread urban myths. A solicitor will often hear myths about contesting a will in New South Wales. This article sets out five myths about contesting a will in NSW and explains why these assumptions are untrue.

Myths about contesting a will: “Equal is Fair”

A commonly held myth about contesting a will is that dividing an estate equally amongst dependents is the right choice. A prospective claimant might hope for more but believe that the courts will not entertain a claim because the will is equal and “fair”.

However, succession law in NSW recognises that equal is not always the same as fair. A beneficiary who receives an equal share with their siblings can contest the will for further provision from the estate. Individual beneficiaries will have very different financial circumstances, health status and employment prospects. A testator should draft their will with an awareness of their beneficiaries’ specific needs.

Myth 2: “Leave Someone A Nominal Bequest So They Can’t Contest Your Will.”

Another myth about contesting a will is that leaving a person a token gift prevents them from contesting the will. This is the law in some countries, which is probably the origin of this misconception. In NSW, however, the only barrier to contesting an estate is whether the claimant is an eligible person under succession legislation. For instance, a testator cannot make a notional bequest to stop their child from contesting a will because a child is always an eligible claimant.

Myth 3: “Every Beneficiary Can Contest The Will”

Many beneficiaries believe that they are automatically entitled to contest the will. On the contrary, the Succession Act 2006 restricts eligibility to a small list of family members and dependents. Specifically, the only people who can contest a will in NSW are the deceased’s spouse, de facto partner, legally recognised child, and anyone in a close personal relationship with the deceased. There is also conditional eligibility for a member of the deceased’s household or a grandchild who can prove that they were dependent on the deceased.

Therefore, not every beneficiary of a will can contest the will, but everyone from this list can contest the will whether or not they are a beneficiary. In this way, a charity that receives a bequest in a will cannot contest that will for further provision.

Myth 4: “Giving Away Assets Keeps Them Safe”

A testator will often transfer valuable property to forestall anyone successfully claiming these assets with a Family Provision Claim. In some Australian states and territories, this can successfully prevent someone from acquiring assets from the deceased estate. However, in NSW, a claimant can make a notional estate claim to reacquire assets that the testator gave away. Generally, this provision means that the court can return certain assets that the testator disposed of in the three years before their death to the deceased estate. This legal provision aims to prevent a testator from circumventing the authority of the court to make a Family Provision Order.

Myth 5: “It’s Not Worth Contesting A Will Because It’s So Expensive”

Another myth about contesting a will is that it is not worth doing because of the expense involved. There are several points to unpack about this statement. Contesting a will can indeed be expensive, especially if the matter escalates to a court proceeding. However, if a claimant can privately negotiate with the estate’s executor they may secure a settlement without extensive legal or court fees.

Also, a successful claimant can often receive reimbursement if the case proceeds to a court hearing. In civil litigation in NSW, the court can award a successful claimant standard or indemnity costs to cover their legal fees.

Prospective claimants often have significant financial needs and struggle to afford the upfront legal fees when contesting a will. Armstrong Legal offers “No Win, No Fee” representation in some family provision cases so that the claimant does not have to pay legal fees upfront. In those situations, we are only entitled to payment if there is a court award or the claimant reaches an agreement with the estate or the beneficiaries. The estate will pay our fees directly. This system affords the claimant peace of mind that they will not be out of pocket if unsuccessful. The contested wills team at Armstrong Legal specialises in family provision claims and can expertly assess a client’s chances of success. We offer this agreement because we have confidence in the merits of your claim and are ready to share any risk with you.

There are many myths about contesting a will in NSW. The contested wills team at Armstrong Legal can answer any questions you have about your actual rights and any obstacles to claiming against a deceased estate in NSW. For more information on contesting a will in NSW, please call the team today on 1300 038 223 or complete this online form.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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