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Defending a Contested Will


How to Defend a Will Against a Claim

When someone decides to contest a Will, it is the responsibility of either the executor or the beneficiary to defend the contested Will.

Once probate has been granted, the executor is responsible for following a formal legal process to make sure the Will is executed in accordance with the relevant state laws. Each state has different laws that govern Wills and Estates and they are complex so it is recommended you seek expert legal advice from a specialist Will dispute lawyer.

All matters concerning Will disputes are heard in the Supreme Court so it will be necessary to engage legal advice. This area of the law is very specialised so when you're looking for a lawyer to handle your Will dispute it is recommended you obtain advice from a lawyer or solicitor who is an experienced expert in Will disputes. Your local criminal or family lawyer is not likely to have the necessary experience or understanding of the Wills, Probate and Administration Act.

Our objective is to resolve any Will dispute during mediation. Settling a dispute before it gets to court is usually the best outcome for all parties. Early resolution will save you legal fees so that more funds can be distributed to the beneficiaries. To achieve a favourable outcome you will need a legal team that understands the process, knows the right questions to ask and can then make an objective assessment about how to facilitate an early resolution.

I was in a same-sex de facto relationship. Unfortunately, my partner died and left the bulk of his Estate to me. His family did not recognise us as a couple and are now making a claim on his Will. How do I go about defending myself?

Your partner’s family are making a claim on his Estate and this is commonly called a family provision claim.

Under the Succession Act, only eligible persons are able to make a family provision claim. Eligible persons include de facto partners, children of the deceased and a person who was, at any particular time, wholly or partly dependent on the deceased and was a member of the deceased household at any time.

Based on the above, your partner’s family may be able to bring a family provision claim against your partner’s Estate if they can show the Court that, they were a member of your partner’s household at any time and most importantly, were wholly or partly dependent on your partner at any time. If they are unable to show the Court that they are an eligible person as defined in the Succession Act, then they would be unable to make a family provision claim against your partner’s Estate.

You need to seek expert legal advice on how to defend your inheritance from your partner, from a family provision claim. This includes advice on preparing your evidence, to ensure the Court accepts you were in a de facto relationship, as well as advice on whether the matter can be settled through mediation with your partner’s family.

The Succession Act is aimed at the speedy resolution of family provision claims, without the need for the matter to go to a court hearing. To ensure this, the Court will order the parties to attend mediation early in the proceedings and a large majority of family provision claims are settled by mediation, saving both parties from having to participate in what could be an emotional court hearing, as well as saving the Estate from having to pay legal costs.

It is important that you have expert legal advice before attending a family provision claim mediation as this is the best way to defend your inheritance by presenting a strong case to your partner’s family at mediation. This includes ensuring that his family are presented with strong evidence showing that you and your partner were in a bona fide and genuine de facto relationship.


Will Dispute - 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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