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Will Disputes

Why Do People Dispute Wills?

Will disputes can be generally divided into two main categories:

  1. Family Provision Claims.
  2. Contesting the validity of a Will.

In NSW the law provides for eligible persons to be adequately provided for in a Will. We discuss who is defined as an eligible person on the Family Provision Claim page.

In Australia 5-6% of families comprise step children. There are more blended families than ever before. Recognising this, law makers updated the definition of people who are entitled to be provided for in a Will. Together with elevated property prices and compulsory superannuation laws that provide for substantial estate values, more people than ever are challenging Wills.

Family Provision Claims are the most common type of Will dispute. If you believe you were unfairly left out of a Will or that you didn't receive a fair share of an estate, click here to find out all the information you need to know about Family Provision Claims

The other reason people contest Wills is if they consider the Will to be invalid. Under the law, there are a number of processes that need to be followed for a Will to be judged as valid. You are also required to be an "interested person" in order to file a claim that a Will is invalid. We discuss these issues in more detail on our Contesting a Will page.

If you have been nominated as an executor of a Will and someone is challenging the Will it will be helpful for you to read the information we have provided on the Defending a Will page.

Whatever your circumstances, whether you're contesting or defending a Will, the laws and processes are complex. To obtain a favourable outcome you will need to speak with an expert Will Dispute Lawyer. Read the information on this page to help you make a decision about who you should rely on to get reliable advice.

Your initial consultation with us is free of charge so if you would like to Get In Touch with one of our lawyers now, click here.

Defending a Will

If you are the executor or beneficiary of a Will and someone decides to contest or challenge the Will, you are responsible for defending the interests of the testator (the person who made the Will). In these circumstances, it can be a very complex process to navigate. Here, we help you with some of the information you will need to know when deciding how to proceed.

Family Provision Claim

Family Provision Claims are applied for when an eligible person has not been adequately provided for in a Will as required by law. In legal terms, these claims are referred to as challenging a Will.

If you are thinking of filing a Family Provision Claim, you may want to know:

  1. Are you an eligible person as defined in the Family Provision Act?
  2. On what grounds you can challenge a Will.
  3. How long you have to file a Family Provision Claim.
  4. What you need to prove to successfully challenge a Will.

For all of this information and more, read through our section on Family Provision Claims.

Contesting a Will

In legal terms, contesting a Will refers to an interested person contesting the validity of a Will. If you are thinking of contesting a Will, you may want to know:

  1. Are you eligible to contest a Will?
  2. On what grounds you can contest a Will.
  3. How long you have to contest a Will.
  4. How you begin the process of contesting a Will.

For all of this information and more, read through our section on Contesting a Will.

Will Dispute Lawyers

Engaging a specialist lawyer in the practice of Will disputes is going to help you resolve matters in a timely and cost effective manner. All Will disputes in NSW are heard in the Supreme Court and follow a strict process. An experienced Will dispute lawyer will be help you navigate this process more quickly and easily than a general practice solicitor because they know:

  1. How the court expects affidavits to be prepared.
  2. What the judge expects of you.
  3. What to look for in the preparation of evidence.
  4. What a successful settlement outcome would be.

To learn more, read through our section on Will Dispute Lawyers.

Will Dispute Costs

Unlike personal injury law which has become increasingly regulated in relation to legal costs, no such regulation has yet occurred in Will disputes. This can lead to the uninitiated engaging a lawyer, who is not well placed to advise them on their prospects of success in disputing a Will.

Contesting a Valid Will - Colleen McCullough

Colleen McCullough died in January, 2015 and was known as one of Australia’s most successful literary writers. The author of the international successful novel The Thorn Birds, published in 1977, had an Estate estimated to be worth millions of dollars at the time of her death.

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Family Provision Claims - Mitar vs Mitar

In Mitar v Mitar [2017] NSWSC 647 the deceased, a widow, left behind four children, three daughters and a son, and an Estate valued at approximately $3 million dollars. In his Will the deceased left the whole of his Estate to his eldest daughter and a right to reside in the family house to his son. The deceased made no provision for his other two daughters however his eldest daughter, based on conversations had with the deceased, divided the cash in the Estate between herself and her two sisters of approximately $200,000 each.

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Successful Family Provision Claim - From a Foster Child

In this case, the deceased died aged 95 years old. She was a widow with two children, Graham aged 67 and Paul aged 65. The Will Challenge was made by Vera Hamilton, who the deceased and her late husband had cared for as a foster child for about 18 months.

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Contesting a Will - Testamentary Capacity

In the case of The Estate of Ella Minnie Lillian Bush v NSW Trustee & Guardian [2016] NSWSC 1611, there was a dispute over whether the deceased had testamentary capacity at the time she created her last 3 wills.

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