The passing of a loved one or close friend is always a difficult situation.
Wills are most commonly contested where a beneficiary or other eligible person seek further provision from the Estate, or where there is reason to believe that the final will of the deceased person was invalid. The invalidity of the will may arise from a lack of capacity by the will maker, or because they were alleged to have been unduly influenced by a third party.
Whilst the deceased has a right to decide who inherits their assets, the law also ensures that the interests of eligible people are protected.
If you expected to be a beneficiary of a will, but have not been provided for, you can make a claim against the distribution of any estate under the family provision laws, provided that you are an eligible person, and further that inadequate provision was made.
It is important to remember that if you believe you are eligible to claim on an Estate, or if you are responsible for the management of an Estate, that you comply with section 54 of the Succession Act 2006 (NSW). This entitles certain categories of people to inspect or obtain a copy of a will after the will-maker has passed away. These categories include:
- Anyone named in the will (whether or not named as a beneficiary).
- Anyone named or referred to in an earlier will as a beneficiary (even if they are not named in the new will).
- A parent, guardian, spouse, de facto partner or child of the deceased.
- A parent or guardian of any child referred to in the Will or who would be entitled to a share of the deceased’s Estate if they had died without a will.
- Any person who has or may have a claim at law or in equity against the Estate.
- Any attorney who had an enduring power of attorney given by the deceased.
- Any person who had formal management of the deceased’s affairs under any particular legislation.
Shire Legal can assist you during this time by offering guidance and considered advice in relation to your entitlements, including:
- Your eligibility to contest a will
- Determining the type of claim to be made
- Preparing a statement and gathering supporting documentation
- Negotiating and liaising with the Estate
Life estates and will disputes (June 2020)
Can you prevent a claim? (February 2020)
Avoiding family provision claims on your estate (November 2019)
Full and frank disclosure in contested estates (March 2019)
"Crisp Orders" - more than just a life interest (September 2018)