Sydney Contested Wills Lawyers

Challenging a Will in Sydney

Challenging a will is not the same as contesting it. When a person challenges a will they are calling into question its validity. If a person challenges a will they are arguing that there should not be a grant of Probate. Probate is granted when the court has determined that the will is valid and assets can be distributed amongst the beneficiaries. If you want to argue that a will is not valid then you will need to supply proof.

A will may be challenged on the following grounds:

Contesting an Estate on the Basis of Fraud

If you argue that a will was created fraudulently then you must provide evidence that the will was not legitimately created or that false statements were made leading up to the creation of the will.

Contesting an Estate on the Basis of Undue Influence

Undue influence occurs when a will maker is tricked, manipulated, deceived or coerced into leaving a large portion, or all of their estate to a single person. It is challenging to prove, and you must adduce evidence to support the claim that the will did not reflect the deceased person’s true final wishes.

It may be possible to prove undue influence if you have evidence to support your claim through suspicious or unusual activities such as:

• greater reliance on one person
• changes to bank access authorities
• changes to power of attorney
• vulnerability of the will maker

Undue influence may also occur when there is a power disparity between the will maker and another party, for example:

• parent/child
• lawyer/client
• doctor/patient
• religious practitioner and member

Lack of testamentary capacity

When a will is challenged on the basis of lack of testamentary capacity it means that someone is arguing that the will maker did not have the mental capacity to make or change their will. You may argue, for example, that the deceased didn’t understand the impact the will could have on surviving family members or others who were financially dependent on them. For example, someone with severe mental health or cognitive health issues such as dementia may not have the capacity to change their will and therefore the will could be deemed invalid. For this argument to succeed it must be proved that the deceased lacked the capacity to create a legally binding will. An Armstrong Legal Sydney contested estates lawyer can give you advice on what you will need to prove this.

How to Contestg a Will in Sydney

Contesting a will is different to challenging a will. When you contest a will you are not saying that the will is invalid. Rather you are disputing the substance of the will. This may be because you did not receive the portion of the estate that you were entitled to or because you were entirely left out of the will. It may also be because the will makes provision for something to occur that is not workable or practical for example, money from the estate being spent on sending grandchildren to a certain school, which is no longer possible because the school has closed down, or the children have moved away.

If you want to contest a will you should seek legal advice as soon as possible. In NSW, a person only has 12 months after the date of the person’s death to contest their will.

Who Can Contest A Will?

The Succession Act 2006 (NSW) Section 57 states that only an eligible person can contest a will. An eligible person is:

• the spouse of the deceased person at the time of their death;
• the de facto partner of the deceased person at the time of their death;
• a child of the deceased person;
• a former spouse of the deceased person;
• a grandchild of the deceased person who was dependent on the deceased person at any time;
• a person who was living in a close personal relationship with the deceased person at the time of their death.

If you have a claim on which to contest a will, the first step is to communicate this claim to the executor. Often, the dispute will be resolved at this stage, in which case your Sydney Contested Wills lawyer will draw up draft agreements. If you and the other party are happy with the agreement, the distribution of the estate will proceed.

If negotiations fail, you or your lawyer will need to notify the court you are lodging a Family Provision Claim.

Family Provision Claims

When a will is contested it is usually on the basis of a Family Provision claim. Most family provision claims are brought by adult children of the deceased who believe the will is unfair.

In a family provision claim, the applicant is applying for a larger share of the deceased person’s estate than what was left to them in the will. A person can also lodge a family provision claim if they are an eligible person who was left out of the will entirely.

If a family provision claim is not resolved outside of court, the court will consider:

• whether or not the deceased person was obliged to provide for the applicant;
• whether the applicant was adequately provided for while they were living;
• the applicant’s capacity to provide for themselves; and
• the effect the claim would have on other beneficiaries of the will.

How Our Sydney Wills and Estates Lawyers Can Help

If you believe that the provisions of a will are unfair and you did not receive what you are entitled to, then our Sydney contested estates lawyers can help you.

Our Sydney Contested Wills lawyers will assess whether you have a valid claim and what your chances are of success.

Armstrong Legal’s Sydney contested estates lawyers will negotiate on your behalf using their experience and expertise to make the process as simple as possible for you. They can be contacted on 1300 038 223 or emailed.