NSW Laws for Will Disputes
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There are currently hundreds of NSW Will Contest Lawyers advertising that they are a specialist in Contesting a Will, however few are 'Accredited' (recognised) by the Law Society as being a 'Specialist'. And few have the expertise and experience that I have after 25 years of doing nothing else. Nearly every solicitor advertising calls themselves 'experienced' or a 'specialist' but to what extend. One months experience? one years experience? Ask a few questions. I recently heard about a case where the solicitor acting for a claimant, in court, told the judge that the case he was handling was only the third case he had ever been involved in.
If you are in the process of selecting an experienced solicitor to represent you I suggest you ask each solicitor a few questions such as how many cases he or she has been involved in and how many years the or she have worked in this area of law.
Summary of the Law from 1916.
Lawyers in New South Wales commenced representing clients who had been left out of the will in 1916 following New South Wales legislation titled Testators Family Maintenance and Guardianship of Infants Act 1916. The legislation was passed several years after legislation in New Zealand and the United Kingdom. In 1900 in New Zealand legislation was passed which allowed courts to override the terms of the will. This represented the first legislation for NSW will contest lawyers now commonly referred to as contesting I will or family provision claims.
The law in New Zealand was first, allowing for court orders for adequate provision for the proper maintenance and support of widows and minor children from the estate of the deceased husbands or fathers. The original legislation in New Zealand and New South Wales was intended for will contest lawyers to represent windows and children from husbands and fathers who preferred leaving provision to others.
It was not until 1982 in New South Wales that legislation was changed and the name became the Family Provision Act 1982. From that date will contest lawyers in New South Wales were able to continue representing widows or minor children but with the 1982 Act now also able to claim for adult children de facto partners and other close relatives living in the same household as the deceased. Also for the first time other eligible applicants were recognised including people who were not relatives as such but who were living in a close personal relationship with the deceased.
However one of the biggest changes for New South Wales will contest lawyers was in 1982 with the introduction of notional estate. To this date New South Wales will contest lawyers are the only lawyers in Australia who are able to utilise these provisions. The law in relation to notional is really quite simple at first glance however is in fact quite complex. It is a mechanism to prevent will makers from excluding those people who they are morally bound to provide for and who need provision upon the will maker's death. Under normal circumstances prior to 1982 a will maker could simply exclude those people to whom he or she owed a responsibility to provide for by simply transferring money or property out of his or her estate. This could be achieved by creating joint tenancies or transferring funds to a third party or hiding funds in trust accounts or superannuation.
From 1982 to New South Wales lawyers representing clients in family provision claims were subject to these notional estate rules. Executors and defendants defending a claim have since that date been required to provide information to the court in relation to notional estate assets and claimants have the opportunity of clawing back notional state funds or property to assist the court in making orders for provision out of the notional estate in circumstances where there is not enough money in the actual estate to satisfy competing claims.
Claimants seeking to take advantage of the notional estate rules are only permitted to go back three years prior to the date of death. The rule maybe implemented where it can be shown the will maker transferred property out of his or her ownership during a period of three years before death specifically to avoid family provision claims. The second portion of the legislation provides that any transfer of property or funds out of the estate within a period of one year from the date of death is automatically included in potential notional estate.
So New South Wales will contest lawyers and their clients claiming against estates pursuant to family provision legislation have a huge advantage over their counterparts in other Australian States. In other states lawyers and the claimants are restricted in family provision claims to the assets forming part of the estate. Therefore such assets that the average person considers to be part of the estate are sometimes not so. For example in all other states except New South Wales money in superannuation or trust accounts or join tenancies are outside of the deceased estate.
The notional estate provisions are complex and have not been widely understood by many New South Wales will contest lawyers until recent times. In fact it was not until 1 March 2009 that the act was amended again to form part of the New South Wales Succession Act 2006. The 2009 amendment to that Act included provisions setting out more clearly the rules for notional estate. 15 additional sections were added by the new amendment the details of which only affected claims in New South Wales.
The number of New South Wales will contest lawyers at the commencement of the Succession Act 2006 was relatively small. I can say from my personal experience that 20 years ago they were only a handful of lawyers practising in this area of law and nearly all of the lawyers were not fully conversant with the notional estate provisions. It must be remembered that these notional estate provisions only apply when contesting a will otherwise known as family provision claims. The notional estate rules do not apply to any other law.
Will contest lawyers in other states are usually not familiar with New South Wales notional estate rules and indeed many interstate lawyers will seek assistance in will contest matters from New South Wales specialist lawyers. New South Wales specialists are required to understand the complexities of sections 74 to 90 of the Succession act 2006 which include a knowledge of relevant property transaction is including exercise of powers of appointment, interests in joint tenancies and life insurance policies and trusts and corporate associations. Notional estate provisions are not always implemented. The court will only designate property as notional estate for the purpose of a family provision claim only when there is not sufficient actual estate for an order to be complied with and only when other matters are taken into consideration such as the disadvantage to the holder of the funds or property acquired in good faith.
The number of New South Wales will contest lawyers has grown significantly over the past 10 years when lawyers were searching for other areas of work particularly when workers compensation and injury compensation work began to dissipate with legislative changes. Many lawyers popped up in advertisements saying they were experts and specialists in litigation however soon found the rules in family provision claims quit different to normal adversarial litigation. Will contests, will challenges and will disputes are not adversarial although unfortunately many lawyers and their clients do not see it that way. These days mediation is compulsory before being permitted to proceed to a court hearing before a judge.
Unfortunately there is a tendency for both claimants and executors in these matters to approach these claims as combatants and fighting and battling the rights of all concerned. This is probably the result of the stereo typical lawyer parading across Australian TV screens from the United States where everything appears to be fought our in court. The exact opposite is true in wills and estate law in Australian. Good lawyers approach cases like judges in this area of law, that is on an inquisitorial basis. An attempt to elicit the facts to get to the point of a correct determination of the issues at hand.
As already referred to here, for New South Wales lawyers a thorough and experienced understanding of the New South Wales notional estate rules is fundamental to a successful outcome in many cases. In addition a good lawyer whether representing a claimant or an executor will negotiate in good faith and will willingly exchange information with a view to an early settlement.