Estate Disputes
Losing a loved one is difficult, especially if you or someone else has been unfairly or unexpectedly excluded from a will. If you find yourself in this situation, we may be able to assist.
Types of disputes
Estate disputes arise where:
- a person expecting to receive something is excluded from a will;
- a person is left a small amount which doesn’t meet their expectations;
- a person is promised something which is not left to them in a will;
- a deceased has no will at the time of their death (they died “intestate”) and a person will not receive anything based on the rules of intestacy.
Who can make a claim?
In NSW, you are eligible to make a claim if you:
- are the current or former wife, husband, or spouse of the deceased;
- were in a de facto relationship with the deceased at the time of their death;
- are a child of the deceased;
- are a child of someone in a domestic relationship with the deceased;
- are a person who is, or was at some time, dependent on the deceased:
- who is the grandchild of the deceased; or
- who is or was a member of the deceased’s household; or
- were in a close personal relationship with the deceased at the time of their death.
When to make a claim
If you are eligible and you wish to make a claim, in NSW you must bring your claim within 12 months of the date of a person’s death. While a year may sound like a long time, we recommend bringing the claim promptly to reduce complications.
How a claim can be made
If you believe you have been excluded from a loved one’s will, we can assist by contacting the executor and advising them of your intention to make a claim. We can also seek orders from the court to prevent the distribution of any of the deceased’s assets until your claim has been resolved. This is an important step as it ensures that funds are not distributed and spent by beneficiaries before your claim has been finalised.
Once you have decided to make a claim, it is necessary to gather evidence. Your evidence will include details of your relationship with the deceased, your financial situation and needs, and the assets of the beneficiaries.
Once your evidence is ready, the executor will be contacted for settlement discussions. This means that your claim might settle before going to court. While this saves a lot of time and money, an early settlement usually means that the evidence will not be disclosed in full. If you are unaware of the assets in the estate, you may not know if you are getting what you should.
If the matter proceeds to court, it is usual practice for the parties to be ordered to attend a mediation. It is only if early settlement discussions and mediation fails that your matter will be heard in court.
How will the Court make a decision?
In determining whether to make orders in favour of a person contesting a will, the court will consider:
- your financial situation;
- the financial situation of other beneficiaries;
- your future needs;
- any mental or physical conditions or disabilities;
- any obligations the deceased owed to you.
At every stage of contesting or challenging a will, it is important to have sound, experienced legal advice. We are skilled negotiators and litigators and will work with you to avoid costly court fees wherever possible while ensuring a fair resolution on your behalf.
If you need any assistance, contact one of our lawyers at [email protected] or call 02 6686 4233 for expert legal advice.