Contesting a Will in NSW
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- Who can contest: Generally only family members or people living in the same household with the deceased at the time of his or her death or earlier.
- Grounds to contest: You must be able to show a financial need stronger than that of named beneficiaries.
- How to contest: Your first step should be to select and then speak to an experienced solicitor (in this field of law) and obtain some free no obligation legal advice.
- Legal costs: The costs and disbursements can vary enormously from say $5,000 for an early settlement to $100,000 for a hearing before a judge. Most cases settle at mediation with an average cost of about $30,000, usually paid out of the estate.
- Steps to mediation: When you and your solicitor are unable to settle the dispute you and your solicitor (and barrister) will make an appointment to mediate with your opposition before an experienced mediator in an attempt to settle and not go to a hearing before a judge. There can be 30 to 40 steps to mediation because your claim and the executors defence must be prepared in detail.
Step Children Grand Children Time Limits Invalid Will
Contesting a Will from Start to Finish.
If you've been left out of the Will or not properly provided for in the Will I can tell you during one telephone conversation whether or not you have a good case to claim for provision (or further provision) out of the estate. We can discuss the steps and the best approach in these cases including how to settle your claim quickly without any need to go to court.
Trying to settle.
If the family members involved in your case are prepared to settle out of court, documents are prepared in the terms agreed upon for your written approval. If all persons involved are over 18 years of age and have full mental capacity the agreement does not have to be approved by a court. The legal costs in such a case will be at hourly rates and will depend upon how much time was involved in negotiations.
Court to approve settlement agreement.
However if there are persons involved who are under 18 years of age or who do not have full mental capacity, any settlement will have to go to court for the court to approve. This means documents (sworn or affirmed affidavits) will have to be prepared by the solicitors on each side in the manner stipulated by the rules of court sufficient for the judge to read and understand the various financial needs of all family members concerned. The settlement agreement will only be approved if the judge is of the view the settlement is a proper settlement and in particular the settlement is in the best interests of any person under 18 (or without full mental capacity). If proceedings have been commenced in court, the court (a Judge) is required to approve the settlement. If there are no proceedings filed in court and therefore not approved by the court it is possible that one or more of the parties to the settlement could make an application to the court for a different settlement.
If settlement negotiations are not successful you will be required to commence proceedings with a view firstly of going to mediation. The application is prepared by us and includes an affidavit by you of your evidence. The affidavit will contain information about your finances, health and family history and is filed in court and then served upon the executor of the estate.
The solicitor representing the estate will give advice to the executor and will protect the interests of any beneficiaries named in the will. Those family members will swear or affirm an affidavit in response to your claim including full details of the estate and full details of the family members named in the will who are opposing your family provision application.
With the evidence from both sides of the dispute now received, all persons involved will have a clearer picture of every one's personal situation, health and financial position (which are the most important elements in these cases). Both sides will again attempt to settle the claim. Whilst negotiations are taking place a date will be set for a compulsory mediation of your claim. A mediator will be chosen although each State has different rules in this regard. Sometimes the judges become involved in discussions with the parties and at this stage barristers also frequently become involved.
If the claim is settled at mediation or shortly thereafter (which frequently occurs) the lawyers agree on written terms and when everyone has signed those terms the matter is concluded. Only in exceptional circumstances can there be an appeal, for example if someone fraudulently misled the proceedings. Otherwise the matter comes to an end unless of course the court is required to approve the terms agreed upon. Often, a short hearing at court is required at the request of one or both of the parties for the court to approve the terms of settlement. This can help to give certainty that the matter is forever resolved. After final orders, the matter can only be revisited in exceptional circumstances such as fraud. For more details about 'mediation' click on the link at the top of this page.
What happens at mediation.
Mediation usually starts with a round table conference with everyone present. The representative of each team makes a statement putting his or her client's case. There is sometimes further discussion about the points raised and then each team goes into a separate room for private discussion. Throughout the day or half day of the mediation there are continuing attempts to settle the claim.
Settled at mediation.
If the claim is settled at mediation or shortly thereafter (which frequently occurs) the lawyers agree on written terms and when everyone has signed those terms the matter is concluded. Only in exceptional circumstances can there be an appeal, for example if someone fraudulently misled the proceedings. Otherwise the matter comes to an end unless the case is such that the court is required to approve the terms agreed upon. If proceedings have been commenced in court, the court (Supreme Court Judge) is required to approve the settlement. If there are no proceedings filed in court and therefore not approved by the court it is possible that one or more of thr parties to the settlement could filoe an application to the court for a different settlement.
Not settled at mediation.
If the matter does not settle at mediation the case will be listed for a hearing before a judge. In general terms (remembering every case is different) it might take 6 months to get to mediation and 12 months to get to a hearing).
Between mediation and a hearing.
Between the mediation and the hearing of the matter before a judge there are endless opportunities to settle the matter. Only as a last resort should anyone allow a case to go to a hearing (in our opinion). For countless reasons going to a hearing is like going into a casino. Frequently, only the lawyers win.
Each hearing is by a single judge who has discretion as to the possible orders he or she can make. You don’t know which judge you are going to get and each judge will have a different view of the case. You don’t know how witnesses are going to 'stand-up' under cross examination of their earlier written and sworn evidence. The size of the estate may no longer be as first thought and the circumstances of the participants may have changed.
Appeal Judges decision.
At the conclusion a disgruntled team can appeal the judge's decision and that will delay the distribution of the estate until the appeal is decided, which may be another 12 months or more. Accordingly, where possible, two experienced teams of lawyers opposing each other will always try their best to settle a claim rather than go to a hearing. There would need to be very exceptional circumstances before experienced lawyers would not settle at mediation.
Each State has slightly different rules.
When contesting a will in Australia each State has it own rules. The rules are very similar but the subtle differences are important. We are experienced in this field of law in NSW, Victoria and Queensland. The supreme court in each state is in the capital city.
Getting a copy of the will.
Sometimes it is difficult to obtain a copy of a will without the help of a lawyer. Only certain people are entitled to a copy of the will before probate is granted. Those people are usually family members and people named in the will. After probate is granted the document is available to the general public for a fee payable to to the court.
Probate of the will is granted to the executor/s named in the will (unless there is a challenge to the actual validity of the will document, for example an alleged fraud, forgery or lack of mental capacity). The executor/s is then responsible for the administration of the estate assets and distribution of them in accordance with the will.
‘Probate’ is the legal term that simply means “proof of the will”. After the death of a person his or her will is not binding upon society until probate of that will has been granted by the Supreme Court of the State where the deceased lived. This means that in many cases, the estate cannot be administered until probate is granted.
If there is no will.
If there is no will or no executor named in the will or no executor prepared to act as executor the court will instead of granting probate grant ‘Administration’ usually to the person who has the largest entitlement to the assets of the estate. A family provision order will not be made until there is a grant of probate or administration of some kind. However in Queensland a family provision order can be made without the need for probate or administration. Even so, you should ask us about your rights as soon as possible to ensure we have time to make sure your case is as strong as possible
If there is no will the rules of intestacy will apply and each state have slightly different rules as to which family member is entitled to provision out of the estate. If your share of the estate, according to those rules is not fair or proper you may have a claim for provision.
Every case is different.
Every case really is different and that is why this law can be so complicated. There are traps and pitfalls everywhere for the inexperienced. Contesting a will firstly involves an agreement between all concerned that the will is valid. Only then can everyone concerned identify whether the will is fair. People frequently make many wills before their death so it is important to be looking at the last valid will and not be sidetracked by either earlier wills or invalid wills.
Give me a free call anytime for a discussion. Eric Butler: 1800 960 156
I will personally answer the phone and be happy to discuss with you any aspects of your case.
What’s different in NSW?
Family Provision law in NSW is governed by the Succession Act 2006. The law in each state of Australia in relation to contesting a will is very similar however there are some subtle differences in each state and one big difference in NSW that needs to be addressed here. It is referred to as ‘notional estate’.
Let me explain: Australia wide when a will maker is making a will, what he/she is doing is telling the world how he/she wishes what they own to be distributed upon their death. The point here is that the will maker can only gift what he/she owns. So, he/she cannot for example gift property or bank account or any other items that were held by them as joint tenants with another person.
Joint tenancies are entities at law that automatically transfer the asset to the surviving joint tenant upon the first death. The other method of sharing property with another is called “tenants in common”. There is no automatic survivorship transfer involved with tenants in common and a will maker can gift his/her share in his/her will.
A typical joint tenancy is the family home held in the joint names of the spouses. So, you cannot leave a joint tenancy item in your will. If you attempt to do so your attempted ‘gift’ of that property will simply be ignored at law.
Similarly, you don’t actually own your superannuation money because that money is held in the name of a trustee. When you are alive you can make certain requests of the trustee in relation to how you want your fund money to be invested and how you want it to be paid to you from time to time when you have retired. However on your death the money in your fund cannot be distributed by will. You must instruct your trustee before death how you want your fund distributed. This is called "a binding death benefit nomination".
In the other states, joint tenancies, superannuation and some trust assets and other jointly owned assets ‘not owned’ by the will maker are always outside of family provision claims: (contesting a will). So, any money in the form of trusts, superannuation, property, bank accounts, or any other items owned jointly as joint tenants will not form part of the net distributable estate in a will contest (family provision case). In other words those assets are not available for the court to distribute to a family provision applicant.
However, in NSW, those assets referred to above are inside family provision claims and may be available (in certain circumstances) to form part of the net distributable estate of the deceased person's estate from which an order for provision to an applicant can be made by the court.
If there is not sufficient money in the deceased estate to provide for a deserving claimant the court (in NSW) can look to the notional estate of the deceased. The notional estate, if any, would be the money/value of the superannuation, trusts and joint tenancies.
The court will only ‘take’ money from the notional estate if there is not enough money in the ‘actual estate’.
And only if ‘taking’ the money would not unduly disadvantage another family member who would (except for this rule) enjoy the benefit of those particular assets.
The reason for the notional estate rule is to stop will makers transferring money or property out of their estate to avoid family provision legislation. In all states except NSW a will maker could transfer all of his/her assets out of his/her name before death and leave the estate with no value at all and no family member would be able to receive any benefit at all from the estate. The government in the other states don’t seem to think that is wrong. However in NSW the government believed that there would be a grave injustice if a husband for example transferred everything to his girlfriend before death and left nothing to his wife or infant children. He could do that in the other states but not in NSW.
The rule in NSW in summary is this:
- Any joint tenancy in existence as at the date of death could be the subject of a ‘notional estate’ claim. For example, if a husband held a joint tenancy property with his girlfriend, it would be open to the court to ‘take’ his half of that property and use the value of his half to provide for a successful claimant such as his wife. It may involve a court order that the property be sold.
- Also, if during a period of three (3) years before the death of the deceased he/she transfers money or property out of his/her name specifically to avoid family provision law it would be open to the court to trace the money or property to the current holder and ‘take’ it from the holder of those funds or property sufficient to make provision for a deserving claimant such as the wife referred to above.
- And any transfer of money or property by the will maker out of his/her name within a period of 12 months before his/her death it would be open to the court to trace the money or property and ‘take’ it from the holder of those funds (or property) sufficient to make provision for a deserving claimant even if there was no intent (like in 2 above) to avoid family provision law.
Other differences in New South Wales
Hereunder I have summarised various 'rules' relating to contesting a will in NSW which differ 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 NSW will contest lawyers and their clients. Judges in court proceedings are very often limited in their determination of a case by the precise wording of the legislation of a particular state. Hereunder are some more differences in NSW.
The interpretation of certain words. Administration is granted in respect of the estate of deceased person if probate of the will of the deceased person is granted in New South Wales or granted outside of New South Wales but sealed in accordance with the Probate and Administration Act 1898.
Administration is also granted of the estate of deceased person if letters of administration of the estate of the deceased person are granted in New South Wales or outside of New South Wales whether the letters of administration were granted with or without the will annexed.
All these matters relating to administration of the estate relate to family provision claim commonly referred to as contesting the will. So administration is also granted in respect of the estate of a deceased person if an election is made for the New South Wales Trustee and Guardian.
A legal representative of the estate is the person to whom administration is granted. A reference to a person entitled to exercise a power means a person entitled to exercise a power whether or not the power was absolute or conditional or arises under a trust or is to be exercise solely by the person or by the person together with one or more of the persons whether jointly or severally.
A reference to property held by a person includes property in relation to which the person is entitled to exercise a power of appointment or disposition in favour of himself or herself.
If you want more information about contesting a will in NSW 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.
For a free no obligation discussion phone 1800 960 156