Will Dispute Law

At Empower Law Group, we firmly believe in providing the best support to our clients at what can be a very difficult time in their lives. By providing the expertise that is required to navigate complex legal landscapes at fair and appropriate prices, our professional, compassionate team will be able to assist you with your legal issues, whether you are disputing a will or require an experienced lawyer for other legal matters.

Our expert team of will dispute lawyers at Empower Law Group are professionals in our field, helping our clients to achieve successful cases of contesting a will in NSW. If you have been left out of a will or did not receive what you believe you were entitled to, contact our team to book your free initial consultation where you can discuss your case with a professional and obtain an obligation free quote. Our will dispute lawyers are available to consider your case, determine whether you are an eligible person to contest the will, and provide advice on prospects of such a claim. If you instruct us to proceed with disputing a will we can assist you with each step in contesting a will.

The process of contesting a will may include negotiations, mediation and/or litigation. In some cases, the parties are able to negotiate a mutual agreement early thereby resolving the dispute and avoiding more costly processes including litigation. 

In other cases, the will dispute may proceed to mediation, which is a voluntary and often effective way of resolving will disputes. The mediation process can often save you a great deal of time and money if there is a successful outcome, and in many cases, avoid the need to escalate the matter to the next stage.

If an agreement cannot be achieved during the mediation process, the next steps to contesting a will involve preparing the relevant documentation to commence proceedings, referred to as a “family provision claim” in the Supreme Court of NSW.

The filing of a family provision claim in the Supreme Court of NSW can be a costly process. If you are successful, the Court may order that the estate reimburse you for your costs, however, there is no guarantee that this will occur and it will depend on the specific circumstances and a range of factors. If you are unsuccessful, the Court may order you to pay all, or a portion of, the other side’s (often the executor/the estate’s) costs. Costs for family provision claims can often exceed $50,000 and in some cases can exceed $100,000. Therefore, it is crucial that potential claimants obtain legal advice before commencing proceedings, so that they understand their prospects and risks. 

In NSW family provision claims are made under the Succession Act 2006 (NSW).  

In order to bring a successful family provision claim, the person bringing the claim must establish the following:

  1. they are an “eligible person”; and
  2. in circumstances where the person is: (a) a former spouse of the deceased person, (b) a person who was at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member; or (c) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death – having regard to all the circumstances of the case (whether part or present) there are factors which warrant the making of the application, and
  3. adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased, or both. 

Once the claimant has commenced the family provision claim to contest the will, the matter may proceed to a hearing where each party gives evidence to support their case. In reaching its decision, the Court will consider the following:

  • Your age
  • Your character
  • What kind of relationship you had with the deceased
  • What kind of responsibilities the deceased owe to you
  • Your personal financial situation at the time of contesting, including any future financial needs
  • Whether you are financially supported by another person
  • Whether you have any physical, mental or intellectual conditions
  • If the deceased provided you with any maintenance or support prior to death
  • The value and location of any property and other items included in the deceased’s estate
  • Any contributions you have made in the past which increased the value of the deceased’s estate
  • Claims that have been made by other people on the estate in question
  • Any customary law that applies if the deceased was of Aboriginal or Torres Strait Islander descent
  • Any other matters deemed relevant by the Court

Once all of the above factors have been considered, the Court will make a ruling on your dispute. It is in these final stages that the cost of contesting a will and the responsibility for payment of those costs is then determined.

Our team of will dispute solicitors understands that the process of contesting a will can be an emotional and stressful time for our clients, and we promise to do our best to support you in navigating this process. If you are looking for a will dispute lawyer who will fight for you until the end, call Empower Law Group now. We firmly believe in standing by our clients to achieve successful cases in contesting a will and the team at Empower Law Group will work our hardest to get you there.

At Empower Law Group, our team are experts in the fields of business law, small business disputes, criminal defence, traffic law, and estate planning meaning that no matter what your legal situation, we have the expertise to guide you. Contact us today to arrange your free initial consultation and begin the process of disputing a will with the professionals on your side.

FAQs

Can I dispute in NSW?

There are strict time limits within which claims may be commenced. For example, in NSW a family provision claim must be commenced within 12 months from the date of the deceased’s death, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time. 
Your chances of successfully contesting a will are significantly increased with the use of an experienced will dispute lawyer to help you to navigate the complexities of your family provision claim. Our expert team of will dispute lawyers will walk you through the process of contesting a will, for the best possible chances of a successful outcome for you.

How much does it cost to contest a will in NSW?

Generally, if you are successful in bringing a family provision claim, the court may order the estate to pay your legal costs. However, this is not always the case and it will depend on the specific circumstances and a range of factors. 
If handled competently by an experienced will dispute lawyer, disputes can be a seamless and easy process resulting in minimal charges for the claimant. Contact us online for a free initial consultation or call our offices on 1300 414 844. Initial consultations include a full quote for anticipated legal fees associated with your case and can be conducted via telephone or home visit for guaranteed privacy and convenience.

Who is entitled to contest a will?

There are many kinds of relationships with the deceased which the law deems as being an “eligible person” for disputing a will, including:

  • A husband or wife of the deceased at the time of death,
  • Anyone in a defacto relationship with the deceased at the time of death,
  • A child of the deceased,
  • An ex-husband or wife of the deceased,
  • Any person who was either wholly or partially financially dependent upon the deceased at any time,
  • A grandchild who was wholly or partially financially reliant upon the deceased at any time,
  • A person who was in a close personal relationship with the deceased at the time of death.

However, satisfying the definition of “eligible person” is just the first test. 

Several categories of relationships including ex-husbands, ex-wives, grandchildren, and claimants in a close personal relationship with the deceased must also establish that, having regard to all the circumstances of the case (whether part or present) there are factors which warrant the making of the application.
The claimant must then prove that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person. Generally speaking, this is the second test.

Can a will be challenged before probate?

You can challenge before or after probate, however, we strongly recommend that you obtain advice as soon as possible after becoming aware of the death of the deceased, or as soon as possible after becoming aware of any unfairness in the will. This will help ensure you have sufficient time to prepare and commence a claim. 

Generally, the earlier you retain a lawyer the earlier the lawyer will be able to protect your rights.

Can grandchildren contest a will in NSW?

In NSW, grandchildren do not have an automatic right to contest a will, as the deceased does not have the obligation of caring for the child. The success rate of contesting a will for grandchildren of the deceased lies in the special circumstances to do with each individual case. 

In order for a grandchild to bring a claim, the grandchild must show that he or she was, at any particular time, wholly or partly dependent on the deceased grandparent. This would be considered a special circumstance in which disputes from grandchildren may be allowed.
Further to the finding of special circumstances, the grandchild must also show, having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application.

Who pays legal fees if a will is contested?

When contesting a will in NSW costs are often negotiated during the mediation process. If you are defending a will as a beneficiary or an executor, then your legal fees are often, depending on the circumstances, be paid for from the estate. For the claiming party, legal fees may be negotiated as part of the mediation process, if your legal fees are not covered by the estate you can also apply to the court to cover the legal fees associated with disputing a will. 
Our fixed fee structure helps you to understand the cost of contesting a will so you know where you stand before engaging will dispute solicitors to begin the first steps to contesting a will.

Who pays legal costs when contesting a will?

When contesting a will in the Supreme Court of NSW, there are no guarantees that legal costs will be paid out of the estate, though this is much more likely to occur if your will dispute is successful. At Empower Law Group we have the skills and expertise to fight on your behalf for the best chances of successfully contesting a will including obtaining payment of any legal costs associated with your will disputes. 

Is it hard to contest a will?

The process of contesting a will requires evidence to support your claims. Will disputes are often stressful, sad, and emotional and may involve protracted litigation. If you have been left out of a will entirely, or did not receive what you thought you would be entitled to in a will, call our team now to discuss the avenues available to you. Our will dispute solicitors can provide you with written legal advice setting out the prospects (likelihood of success) of your claim, whilst identifying the strengths and weaknesses of your claim and evidence to allow us to gather and develop the evidence accordingly.

At Empower Law Group we believe in providing you with a lawyer you can trust, who gives sound and ethical advice to each individual client.