Contesting a Will & Deceased Estate Litigation

By Heckenberg Lawyers

It is feature of modern life that disputes about wills and deceased estates are occurring more frequently. Contested will disputes are often complex and stressful for the parties not only because they raise issues of relationships between family members and the deceased. Broadly speaking people who contest wills & estates are claimants seeking a greater share of the property of the deceased which lawyers call deceased's estate.

People who have been left out of a will, or feel that they should have received a greater share of the deceased's estate may bring an claim against the estate of the deceased pursuant to the Succession Act (NSW) (other states in Australia have similar legislation) if they can establish they are an eligible person. This is a threshold matter that must be established before a claim will be considered by the Court.

People who are eligible persons under the Family Provision Act include spouses, including de facto spouses, former spouses, children, in certain circumstances stepchildren & grandchildren and other people who were members of the deceased's household and dependant or partially dependant on the deceased (e.g. live-in housekeepers and carers). People seeking their inheritance or claiming their inheritance often rely on the remedies provided by this Act rather than seeking to challenge the will on other grounds such as undue influence or lack of testamentary capacity.

The Executors and Trustees are bound by law to defend the last will and testament of the deceased, distribute the deceased's property in accordance with the last will and carry out the estate administration. This means that they are named as the defendants to an action against the estate and often they can not settle or compromise a claim until there has been evidence served from the claimant which the estate's lawyers can advise should be agreed to in whole or in part having regard to the estate assets and liabilities, cost to the estate of defending the action and the consequent reduction of assets available to other beneficiaries and the likelihood of success of the claim and the evidence that could be mustered to refute the claim.

This is why experienced will dispute lawyers should be retained by claimants and defendants. A Probate lawyer will not necessarily be an experienced wills dispute lawyer familiar with the litigation and court room contest that is required in contested will and estates litigation.

The time for making a claim under the Succession Act is 12 months from the date of death, however it is prudent to seek advice from a solicitor about the will as soon as possible as assets can be distributed quickly in the absence of notice of a contested dispute and may be lost forever. It is our experience that once an Executor is on notice that a claim is being made and that Supreme Court proceedings have been issued the estate property (and any "missing property") is identified, returned and secured by the estate's lawyers and is available to a claimant who is pursuing their inheritance rights or seeking further provision from the disputed will.

The golden rule of thumb for claimants in the Succession Act cases is to be able to establish to the Court that proper and adequate provision has not been made for them by the deceased. Although all cases turn on their facts and the factual matrix and competing needs of each situation is different and different outcomes result if a claimant can establish that they are an eligible person, and the deceased has not made proper and adequate provision for them the Court can make an award in their favour based on their needs, taking into account their financial position, for their maintenance, education or advancement in life. If a claimant is successful the usual costs order is that their legal costs including barristers fees are paid from the Estate.


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