WILL DISPUTE LAWYERS IN SYDNEY

Disputes can occur where:

• There is a Will however it does not properly reflect the wishes of the deceased
• There is a later document that looks like a Will but may not legally be one
• There was undue pressure on a person making a Will that resulted in a person receiving more under a Will than would otherwise be the case
• A Will has been made by a person who didn’t have the legal capacity to make decisions about the distribution of their assets
• Executors or administrators are not properly administering an estate and protecting the interests of beneficiaries.

Settling a dispute before it reaches court is often the best outcome for everyone involved. Early resolution can reduce legal fees and ensure more funds are available for the beneficiaries.

Our disputed estates team has the experience to guide you through the process. We will assess your situation, explain your rights clearly, and help you determine the best course of action. If court proceedings are necessary, we will provide strong representation to achieve the best possible result.

In New South Wales, eligible persons who believe they have not been adequately provided for in a deceased person’s Will can apply to the Supreme Court for further provision.

Contesting a Will is not always a quick or simple process. A claimant must meet specific criteria before a claim can succeed.

Many family provision claims, however, are resolved without the need for a court hearing. Informal negotiations between parties or formal mediation often lead to an agreement. This approach helps avoid the time and cost of court proceedings.

At Kells, we assist both claimants and executors in managing Will disputes. Our team works to resolve matters efficiently and achieve a fair outcome for all involved.

Not everyone can contest a Will. To start proceedings, you must prove that you are an “eligible person” under the Succession Act.

Eligible persons include:

• A spouse of the deceased
• A person in a de facto relationship with the deceased
• A biological or adopted child of the deceased (step children and presumed children are not automatically included in this definition and instead must satisfy other criteria to become eligible)
• A former spouse of the deceased
• A grandchild, or member of the deceased’s household, whom has been wholly or partially dependent on the deceased
• An adult person living with the deceased with a close personal relationship where support and care were provided for no reward at the time of the deceased’s death.

Yes, a family provision claim must be made within 12 months of the deceased’s passing. The Court may extend this time limit, but only in specific circumstances.

It is important to seek legal advice as soon as possible if you are considering making a claim. Acting early gives you the opportunity to resolve the matter through negotiation, which can avoid the need for court proceedings.

The Court determining whether to allow a Family Provision Claim considers a number of factors including:

• Evidence of the deceased’s intentions, including their Will and reasoning provided
• The provisions that have already been made to the claimant and other beneficiaries
• The relationship between the claimant and the deceased
• The nature and extent of the estate
• The deceased’s obligations owed to the claimant, or any other potential beneficiary
• The financial needs and resources of the claimant
• Any contributions made by the claimant to the deceased’s estate or welfare
• The claimant and other beneficiary’s age, as well as any physical, intellectual, or mental disability
• If the deceased was maintaining the claimant, or if there is any other person liable to support the claimant
• The character and conduct of the claimant or any other person
• Relevant Aboriginal or Torres Strait Islander customary law
• Any other matters the court considers relevant.

The Court has broad powers to decide who pays the legal costs in Will disputes. If an executor defends a claim, their legal costs are usually reimbursed from the estate. A successful claimant can also request that most of their costs be paid from the estate.

However, an unsuccessful claimant with no valid grounds may not have their costs covered. In some cases, they may be ordered to pay additional litigation costs.

It is essential to seek qualified legal advice before proceeding. Proper advice can help resolve disputes efficiently and reduce unnecessary expenses for everyone involved. If you are concerned about the costs of contesting or defending a Will, speak with our solicitors. We can discuss options to suit your circumstances.

Yes, you can. If you are an executor and expect the estate may face a claim, or if you are a beneficiary impacted by a challenge, it is important to seek advice quickly. Acting early allows you to respond effectively and protect the estate.

Our experienced team can guide you through the process and help defend the Will against claims. We aim to achieve the best possible outcome while reducing stress during what can be a difficult time. If you believe a claim may arise, contact our office for a consultation. Strict time limits may apply.