Disputing a Will in NSW
Who pays the Legal Costs? As your case gets close to finalisation this will become a very important issue. A substantial amount of your final settlement will be paid in legal costs. You may have heard that your legal costs will be paid out of the estate. Well, don't be fooled; at the end of the day your costs will come out of the estate alright... your share of the estate. Your share could be reduced by as much as half. For more information on this subject give me a call.
Eric Butler 1800 960 156
Please Note: This page is about disputing a will on the grounds of poor administration of the estate or executor negligence. If you've been left out of a will or not received your fair share please proceed to our "Contesting a Will" pages.
A will dispute is not the same as challenging or contesting a Will. A dispute over a Will can arise for many reasons not related to a ‘challenge’ or a ‘contest’ such as an argument as to what the will meant; how the will is being administered or distributed; whether there are errors in the Will; whether a beneficiary named in the Will is not entitled because of a crime committed; removal of an executor or administrator or other disputes about the use of a ‘power of attorney’ during the deceased lifetime.
What’s different in NSW?
The law relating to disputing a will in NSW is basically the same as for all other Australian States. The common law rules apply, however there are some slight differences in some of the types of will disputes and they are as follows;
- The ‘ademption’ rule
In NSW the law provides an exception to the ademption rule in circumstances where a beneficiary suffers an unjust disadvantage not contemplated in the will. In such a case the court has the power to alter the will in favor of the beneficiary affected. In addition, the law provided protection in unfair circumstances where an attorney holding an enduring power of attorney or a guardian appointed by law causes, causes the gift in question to adeem (to be lost). The court in those circumstances may also make orders to correct the wrong;
- Notional estate
It is worth repeating here that ‘notional estate’ in only in NSW and is only relevant in family provision cases. However, you should be awake to the fact that following a will dispute any court order may significantly change the will and the entitlement to provision out of the will for one or more beneficiaries. Remember you have 12 months to make a family provision claim from date of death so it may be prudent to commence proceedings seeking family provision during the will dispute process because you may not be able to commence proceedings after 12 months. You can apply for an extension of the 12 months however extension is at the discretion of the judge.
- Probate and transfer of property.
This section is important for people who have a case involving assets of an estate in both NSW and Queensland. In NSW you are unable to transfer real estate property without first obtaining a grant of probate.
However, in Queensland a certificate of the grant of probate is not required to transfer real estate property. This leaves the door open for an unscrupulous person to fraudulently transfer property. Whilst the fraud would eventually be detected the property may have been resold and the proceeds long disappeared making it difficult to rectify the situation.
- The forfeiture rule.
The basic principle/rule is that a person should not benefit from another’s will if that person caused the death of the will maker. As usual, nothing is so black and white. We would all agree the rule should apply to a vicious and cowardly killing but what about for example a killing response to domestic violence or assisted suicide. Whatever you view, the law in NSW is governed by the Forfeiture Act 1995 whereas in Queensland this is no similar law and virtually no exceptions to the rule.
In NSW the law allows for applications to the court to vary the rule and the court will consider such things as the conduct of the offender, the conduct of the deceased, the effect of the rule on the offender and any other person.
The real difference about NSW is the 'notional' estate provisions. In other States a deceased estate is very easy to identify. The estate assets consist simply of those items of property or personalty in the name of the deceased. Those items of property therefore do not include the deceased's jointly owned property or superannuation or entitlement under a trust.
So, in other States if there is an issue regarding any of those assets the argument will take place in court as a will dispute of a sort but not family provision law. The argument will be about the trust document/s or the background of the jointly owned property to sort out who might be entitled. The superannuation tribunal is frequently involved in other States to sort out Superannuation entitlements.
However in NSW many will disputes can be condensed into one argument under family provision law. Superannuation and trusts and jointly owned property can all be thrown into the melting pot under certain circumstances. There is no need for separate arguments on each issue if a family provision claim is involved. Of course not everyone is eligible to make a family provision claim but he or she is eligible and if there is insufficient money or property in the actual estate then in those circumstances the assets 'out of the estate' can be made available at the courts discretion.
Other Differences in New South Wales
Hereunder I will summarise various facets of NSW Will Dispute Law which differs slightly from other Australian States. As I have mentioned in other pages on this site the law is much the same in all Australian States however the specific wording in the legislation of each State can be a trap for will dispute lawyers and their clients. Judges in court proceedings are very often limited in their determination of a case by the precise wording of legislation or practice notes and procedures of a particular State.
Give me a call anytime. I will personally answer the phone. I'm happy to discuss with you the three (3) most common mistakes made by will dispute contestants that can lead to long delays, huge legal cost and an unhappy end. No cost, no obligation. Choose me to represent you or not, at least you will have the knowledge to start on the right track.
Eric Butler: 1800 960 156