Common Questions About Contested Estates
What Is a Contested Estate?
A contested estate occurs when someone disputes the validity of a Will or challenges the way an estate is distributed. This often happens when a person believes they have not been adequately provided for or if there are concerns about the legitimacy of the Will. Disputes can arise for various reasons, such as claims of undue influence, fraud, lack of testamentary capacity, or improper execution of the will. Contested estates can lead to delays in the distribution of assets and may require legal intervention to resolve.
Who Can Contest an Estate in NSW?
In NSW, certain people are eligible to contest an estate under the Succession Act 2006. These include:
- The deceased’s spouse or de facto partner.
- Children (including adopted and, in some cases, stepchildren).
- Former spouses.
- Members of the deceased’s household who had a close personal relationship with them and relied on them.
Eligible individuals can make a family provision claim if they believe they have not received adequate provision from the estate.
What Are the Grounds for Contesting an Estate?
There are several reasons why someone might contest an estate:
- Lack of testamentary capacity: If the deceased was not of sound mind when the will was made.
- Undue influence: If someone pressured or coerced the deceased into creating or changing their will.
- Fraud or forgery: If the will is believed to have been tampered with or fabricated.
- Family provision claim: If an eligible person believes they were unfairly left out or inadequately provided for in the will.
What Happens When an Estate Is Contested?
When an estate is contested, the process can vary depending on the type of dispute. If a family provision claim is made, the matter will usually proceed through negotiations or mediation to reach a resolution. If an agreement cannot be reached, the case may be taken to the Supreme Court of NSW for a decision. The court considers factors such as the financial needs of the claimant, the size of the estate, and the nature of the relationship between the claimant and the deceased when making its judgment.
How Long Do You Have to Contest an Estate in NSW?
In NSW, a claim against an estate must generally be made within 12 months of the deceased’s date of death. Exceptions may be granted if there are extenuating circumstances, but the court requires a strong justification for any delay. Acting promptly is essential to avoid missing this deadline, as late claims may be dismissed.
Can a Will Be Protected Against Contests?
While no will is entirely immune to being contested, there are steps that can reduce the likelihood of disputes. These include:
- Ensuring the will is drafted professionally by a lawyer to meet all legal requirements.
- Communicating intentions with beneficiaries to reduce misunderstandings.
Do I Need a Lawyer for a Contested Estate?
Contested estates often involve complex legal, financial, and emotional issues, making professional legal advice essential. A lawyer can help assess the strength of your claim, guide you through the process, and represent you in negotiations or court proceedings. They can also provide strategic advice to help resolve disputes efficiently and minimise the impact on relationships and estate assets.
