Inheritance disputes between family members occur very often. The disagreement between a parent and an adult child could result in an unfair will and in a family member disinheriting his/her own child in a will. The main asset is generally the house and it is around the house that the majority inheritance disputes are likely to happen.
In NSW there is a time limit for contesting a will. A family provision claim must be commenced within 12 months from the date of death. If an application for family provision is made more than 12 months after the date of death, you will need to show the court that you have ‘sufficient cause’. The Court has discretion to grant an extension of time if you can show that there is sufficient cause for making a late application. You must provide the court with ‘sufficient justification or excuse’ or ‘sufficient explanation’.
You can contest a valid Will if you receive inadequate provision. If the Court finds in your favour it can either vary the provisions or order the redistribution of the Estate. You may also contest the Will if the person died without making a Will at all. A person who dies without a Will is said to have died “intestate”. A Will can also be contested if it is found to be invalid. To test the validity of the Will you must mount a ‘challenge’ to the Will.
In some circumstances, it is possible to challenge the validity of the will. The validity of the will could be challenged on the basis of undue influence, lack of mental capacity (testamentary capacity), fraud or forgery. It is possible to challenge the validity of the will before or after a grant of Probate. But it is very difficult to challenge the validity of the will after the distribution of the Estate. Generally, only some interested persons would be entitled to challenge the validity of the will such as persons who would be entitled to the estate if there was no will (that is persons entitled under intestacy) or beneficiaries named in the current or previous will.
WHO CAN CONTEST A WILL
In NSW, you may Contest a Will if you are: a spouse of the deceased person at the time of their death; a person with whom the deceased person was living in a de facto relationship at the time of their death (that includes same sex partners); a child of the deceased person; a former spouse of the deceased person; a person who was wholly or partly dependent on the deceased person for a period of time and at any time a member of the same household; or a grandchild who was wholly or partly dependent for a period of time on the deceased person with whom the deceased was living in a close personal relationship.
DEFENDING A CONTESTED WILL
It is important to note that if the Estate is small (under $500,000), it would be advisable to reach an agreement early to minimise dissipation of the estate’s assets legal costs and disbursements (which include the Court fees). If there are several siblings who wish to make Family Provision claims, in some circumstances, costs could be minimised if all are represented by one law firm. However, sometimes it is not possible as there may be competing claims on the same Estate. The `interested person` who challenges a will is often a beneficiary under a previous or current will. The Executor or Administrator has to prove that the will is valid.