CONTESTED WILL DISPUTES

Contested will disputes: In New South Wales a will can be contested if you feel like you should have received something in a will and you have been left out. Or perhaps you have not received as much as you thought you would be entitled too. Sometimes it seems obvious that what everyone assumed would happen with assets is completely different to what is read out in the will. It may be grossly unfair and exclude those who were dependent on the deceased or someone who should have been provided for is excluded from inheriting.

Is it hard to contest a will: the parties who can make a claim are:

  • Spouses and former spouses, including ‘de facto’ spouses and same-sex partners.
  • Children, including children borne of de facto relationships.
  • Grandchildren who were wholly or partly dependant on the deceased.
  • Anyone who was wholly or partly dependant on the deceased.
  • Anyone in a ‘close personal relationship’ with the deceased at the time of their death.

What are the grounds to contest a will: if the will is grossly unfair, or you have been excluded from the will when you were dependant on the deceased. The person writing the Will lacked the necessary mental capacity to understand the ramifications of writing a Will, or that they were not in control of their faculties if you can show the person suffered from senility or mental illness, or a medical condition which impaired their mental capacity (this may only have been temporary in effect); and that it was not drug or alcohol related. There may also be grounds for disputing the will if it was written under duress, involves fraud or undue influence.

The party making the claim will need to show the testator was not under the influence of drugs or alcohol at the time of writing their will.

How much time do you have to contest a will: it is important to act quickly and instruct a solicitor as soon as possible. If the testator died after the first of March 2009, you have 12 months from the date of death to raise a Will dispute claim. If you have not sough legal advice in the required time frame the court can change the time limit in some circumstances but the Court will only extend time if there is sufficient reason for the delay in bringing the claim. You can’t assume that an extension of time will be granted.

How long does it take for a will to be contested: from the time executor is notified until final hearing can vary from months to years depending whether the claim is complex or straightforward, whether the parties will negotiate and how well the claim is prepared.

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