To contest or challenge a will in New South Wales (NSW), if you think that you have been unfairly left out of a Will or and seek a greater share of the estate, you need to establish the following:
- Eligibility: You must be an eligible person. This generally includes:
- Immediate family members (spouses, children, and sometimes former spouses).
- Dependents who were financially reliant on the deceased.
- Beneficiaries named in the current or previous wills.
- Grounds for Contesting: You need to have valid grounds to challenge the will. Common grounds include:
- Lack of Testamentary Capacity: The deceased did not have the mental capacity to understand the nature and effect of the will.
- Undue Influence: The deceased was coerced or pressured into making the will.
- Fraud or Forgery: The will was forged or obtained through fraudulent means.
- Evidence: You must provide substantial evidence to support your claim. This can include:
- Documentary Evidence: Copies of the will, previous wills, correspondence, and other relevant documents.
- Witness Testimony: Statements from witnesses who were present at the signing of the will or had conversations with the deceased about their testamentary intentions.
- Medical Records: Evidence of the deceased’s mental state, especially if challenging on the grounds of lack of testamentary capacity.
- Forensic Evidence: Handwriting analysis if forgery is suspected.
- Time Limits: There are time limits for contesting a will. It’s important to act promptly and seek legal advice as soon as possible from a Firm that has experience in dealing with these matters and has litigation experience in the NSW Supreme Court (such as Michael Vassili who has over 35 years of such experience)
- Legal Proceedings: You may need to file a probate caveat to prevent the court from issuing a grant of probate until the dispute is resolved. If an agreement cannot be reached, court proceedings may be necessary.
When the matter is in Court, generally the Court will order a mediation which may include a Court annexed mediation. That is a mediation conducted at the Supreme Court by a Registrar of the Court.
Many of these claims settle prior to a final hearing as a hallmark of these proceedings is that they are generally expensive to conduct. Who pays the costs of the proceedings can be a complex question, but generally the costs will be borne by the Estate for the person challenging on an ordinary basis (that is, not all of the costs but generally around 60-70%) and the Costs of the Estate are paid by the Estate on an Indemnity basis (that is all of the costs incurred). Accordingly, there is often a commercial interest in both parties using good faith to settle the dispute. The Executor has a duty to act in the best interests of the Estate, which including, if there is commercial benefit to it, settling a claim by a party to avoid the risk and cost to the Estate. However, generally the Executor will have a duty to preserve the wishes of the Testator (deceased).
Again, its important to obtain competent legal and commercial advice in these matters from an experienced lawyer. Our office is generally open to being paid fees at the end of the matter but does not offer a no win no fee service. Caution should be exercised for no win no fee services as our experience indicates that a premium fee is charged (or loading amount which is lawful in such matters) and sometimes, regretfully, no win no fee can present a reality of no fee little work. There is risk in all litigation and most successful experienced practices will charge (but sometimes, defer) fees.
