July 20, 2017

Challenging a Will

person signing a will

If you believe that you have unfairly been left out or have not been given what you are entitled to from a Will or inheritance, you will want effective legal representation to help protect your future.

At O’Brien Solicitors, we pride ourselves on our personalised approach that separates us from larger firms. We understand that it is hard enough to lose someone close, let alone deal with the financial aftermath. In pursuing an outcome that is favourable to you, our lawyers can help you form a clear and sensible strategy that suits you and your particular situation.

Am I eligible to contest a Will?

Before proceeding to dispute a Will, it is important to know whether you are eligible to make an application.

Under the Succession Act 2006 (NSW), people who are eligible to claim include:

  • Spouses and former spouses, including ‘de facto’ spouses and same-sex partners
  • Children, including adult children, children under 18 years and adopted children
  • Grandchildren, who were wholly or partly dependent on the deceased
  • A person who was, at any particular time, wholly or partly dependent on the deceased person
  • A person who had a ‘close personal relationship’ with the deceased at the time of their death

What grounds do I have to challenge a Will?

If you are eligible, then there are a number of grounds upon which you may be able to claim.

Our lawyers will be able to guide you where you have the greatest chance of successfully contesting a Will. The most common grounds include where:

The Will is ‘grossly unfair’. This may involve a situation where you have been excluded from the Will when you were dependent on the deceased or where you otherwise should have inherited.

The person writing the Will lacked the necessary mental capacity to understand the consequences of writing a Will. This may involve a situation where the person writing the Will was suffering from a particular medical condition, was under the influence of drugs or alcohol or was either ill or very elderly. People under the age of 18 years old in NSW are deemed to lack the necessary capacity.

The person writing the Will was not acting independently when writing their Will. This may involve a situation where the person writing the Will was under duress, there was fraud involved in the production of the Will or they had some other kind of undue influence acting on their mind.

The Will was forged. This may involve a situation where the Will was written entirely by a person other than the deceased, or a drafted Will was signed by someone impersonating the deceased.

How long do I have to challenge a Will?

The sooner you talk to us about fighting a Will, the better.

In NSW, there is a time limit on challenging a Will of 12 months after the date of the death of the deceased person.

You may still challenge the Will after that time, but it will be more difficult. For one, you must show the Court that there is sufficient cause for an application to be made. Also, it may take longer for the matter to resolve if the executor has already distributed the assets to the Will’s beneficiaries.

I am eligible and think I have a good claim. What are my options?

Matters in Wills and Estates are complex and every case will be different. The way in which we advise you to proceed will depend upon your circumstances. However, there are a few common ways to advance your case.

Where possible, we will advise that you resolve your dispute through a settlement agreement or mediation. Avoiding an appearance in Court may help reduce legal fees, encourage an earlier resolution and possibly help cool relations between the parties.

However, if it is necessary to contest a Will in Court, O’Brien Solicitors will fully assist you to present your case in the best possible light.

An outcome in your favour could range from receiving an amount of compensation to having the Will completely set aside. If you have unfairly been left out of a Will, O’Brien Solicitors will help you move forward again.

Contact our Wills & Estates Lawyers

(02) 9261 4281


O’Brien Solicitors are located at:
 

Suite 504, Level 5
265 Castlereagh Street
SYDNEY NSW 2000

  • Opposite the Downing Centre Court Complex
  • Close to Central Local Court