When a person passes away, their assets are typically distributed according to their will. However, there are certain situations where a will may be contested by family members, beneficiaries, or other interested parties. In New South Wales (NSW), there are specific grounds for contesting a will. In this blog post, Empower Law Group will discuss those grounds and what you need to know if you are considering contesting a will in NSW.
What It Means to Contest a Will
Contesting a will is a legal process that involves challenging the validity of a will or the provisions contained within it. When a person contests a will, they are essentially arguing that the will should not be given legal effect, or that certain provisions of the will should be changed.
Grounds for Contesting a Will in NSW
Lack of testamentary capacity
One of the most common grounds for contesting a will is a lack of testamentary capacity. This means that the person who made the will did not have the mental capacity to understand the nature and effect of their actions when making the will. To prove a lack of testamentary capacity, you must demonstrate that the testator (the person who made the will) was suffering from a mental illness or disability or was under the influence of drugs or alcohol at the time the will was made.
Undue influence
Another common ground for contesting a will is undue influence. This occurs when the testator was coerced or manipulated into making a particular provision in their will. To prove undue influence, you must demonstrate that the testator was vulnerable to the influence of another person, and that the person exerted such influence to the extent that the will did not reflect the true intentions of the testator.
Lack of proper execution
A will must be executed properly to be considered valid. In NSW, a will must be in writing and signed by the testator in the presence of two witnesses, who must also sign the will. If the will was not executed properly, it may be considered invalid and open to contestation.
Fraud
If a will was made as a result of fraud, it may be contested. This can occur if the testator was misled or deceived into making a particular provision in their will. To prove fraud, you must demonstrate that the testator was intentionally misled and that the deception was material to the making of the will.
Family Provision Claims
Under the Successions Act 2006 (NSW), certain family members and dependants have the right to contest a will if they believe they have not been adequately provided for. To make a family provision claim, you must demonstrate that you are an eligible person under the Act and that the testator did not adequately provide for your proper maintenance, education, or advancement in life.
Who can contest a will in NSW?
In NSW, certain family members and dependents have the right to contest a will. These include:
- Spouse or de facto partner
- Children or stepchildren
- Former spouses or de facto partners
- Grandchildren
- Parents
- Siblings
- Dependants of the deceased
- People who were in a close personal relationship with the deceased
It is important to note that even if you are not listed above, you may still be able to contest a will if you can demonstrate that you were dependent on the deceased at the time of their death.
The Process of Contesting a Will in NSW
If you are considering contesting a will in NSW, it is important to understand the legal process involved. The process of contesting a will can be complex, time-consuming and emotionally challenging, so it is essential to seek the advice of an experienced estate lawyer.
The first step in contesting a will is to determine whether you have legal standing to do so.
Once you have established that you have legal standing to contest a will, you will need to lodge a formal claim with the Supreme Court of NSW. This involves filing a document known as a ‘Summons seeking Family Provision Order’.
The next step is to participate in mediation or settlement negotiations with the other parties involved in the dispute. This can help to resolve the matter without the need for a court hearing.
If mediation is unsuccessful, the matter may proceed to a court hearing. At the hearing, both parties will present their arguments and evidence to the court. The court will then make a decision based on the evidence presented, as well as the relevant laws and legal precedents.
It is important to note that contesting a will can be a lengthy and expensive process. In addition, there is no guarantee of success. However, with the help of an experienced estate lawyer, you can increase your chances of a successful outcome and ensure that your rights and interests are protected throughout the process.
Time Limits for Contesting a Will in NSW
If you wish to contest a will in NSW, you must do so within certain time limits. Generally, a family provision claim must be made within 12 months of the date of death of the testator. Other types of claims, such as lack of testamentary capacity or undue influence, may have different time limits.
It is important to seek legal advice as soon as possible if you are considering contesting a will, as there may be additional requirements and procedures that must be followed.
What happens if a will is successfully contested?
If a will is successfully contested in NSW, the court may make an order to vary the terms of the will. This can involve redistributing assets, changing the provisions of the will, or even declaring the will to be invalid. It is important to note that contesting a will can be a complex and emotional process, and it is recommended that you seek the advice of an experienced estate lawyer if you are considering taking this step. By understanding the grounds for contesting a will in NSW, you can make an informed decision about whether or not to pursue a claim and take the necessary steps to protect your rights and interests.
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