Discover the Ins and Outs of The Legal Process when Contesting a Will
There are many reasons for contesting a deceased’s Last Will & Testament (Will). If you think you have grounds to contest a Will, you should contact our estate lawyers who specialise in disputes and estate matters. Our estate lawyers will assist you in filing a Will contest and help you receive what you are entitled to.
The law in NSW allows a testator (owner of the Will) to decide who will inherit their assets after their death. This is the time when wills, estates, and planning ahead is necessary. However, despite leaving behind a valid Will, there are some instances which give rise to someone wanting to contest a Will.
If you had a close relationship with the deceased, and you have been left out of the Will, or you feel that you have not been adequately provided for by their Will, you may be eligible to contest their Will. The Court will consider several factors including your relationship, your financial position, the size of the estate and other related factors with respect of the deceased.
The Probate Process
Probate can only be granted if a Will is present. If the testator dies intestate (without a Will), then a next of kin (usually a family member) will need to apply for Letters of Administration. The process is similar but can undoubtedly prove to be more complex.
Certain procedures need to be followed when a person dies with a Will. This process includes appointing an executor, the one responsible for implementing procedures and distributing properties to the beneficiaries.
Getting a Death Certificate
Often, funeral staff are responsible for registering the death, but you will also need to fill out the certificate application form with details. The Registry of Births, Deaths, and Marriages can only provide death certificates to registered deaths. If the place of death is outside NSW, contacting the Registry of the relevant area is important.
For NSW residents, a death certificate can be claimed by any of the following:
- Spouse or partner via a de facto relationship
- Child of deceased
- Funeral director
- Solicitor of the deceased or next of kin
- Executor of relevant state
In order to successfully request a death certificate, you will need to submit the following documents:
- Your personal identification
- The deceased’s personal information
- The date and location of death
- Full names of deceased’s parents
- Personal information of deceased’s spouse
Other persons who do not belong in any of these categories will need additional requirements such as a power of attorney in order to claim a death certificate. Costs vary depending on your type of claim.
Purpose of a Death Certificate
You’ll need to obtain a valid copy of death certificate for the following reasons:
- For funeral benefits claims
- For saving account withdrawing
- For superannuation claims
- For insurance claims
Since there will be a lot of claiming to do, it is a good idea to have more than one copy of the death certificate. Each one should be a certified true copy by the Registrar or government authorities such as a justice personnel, magistrate, or a lawyer.
What is an Informal Will?
Starting 1989, the Court allows a document to be considered a Will, given that it is proven that the deceased intended the written copy to be their last Will.
However, depending on the circumstances, the Court may accept a tape recording made by the deceased. In the instance you are not sure if the document in possession makes a valid Will, you should consult your estate lawyer for advice.
What is Probate?
Probate is an order from the Court, stating that the Will is proved to be valid and the executor is hereby allowed to collect the assets and distribute them according to the wishes of the deceased.
The probate order is always required if the deceased owns a real estate. However, if the property is co-owned with someone else, other rules will apply.
If the estate is relatively small and straightforward, an executor may apply for a probate when they are done with the investigation work, which includes finding the deceased’s assets and liabilities, assessing their value, and knowing the requirements of authorities before distribution.
The Supreme Court of NSW – Probate Division
The Probate division of the Supreme Court of NSW is a special Court designated to reinforce probate law and manage the estates and debts of a deceased person. Generally, the Supreme Court is responsible for ensuring that the debts of the deceased are paid accordingly. When necessary, they may also decide on Beneficiary Designation requests. Also, they want to make sure that all assets are distributed to valid beneficiaries. Should the executor be found to be mishandling the estate, the Court will intervene
Finding Assets and Liabilities
Contacting the handlers of assets and credits is the first step that executors make when locating the deceased properties and debts. The executor should inquire about the details and the requirements for release.
When a grant for probate is obtained, opening a new bank account in the name of the estate is recommended. This account can be used to release the monies; as well as the debts when the probate has been released.
Ways to Apply for a Grant of Probate
You can file for a grant of probate through the following:
- A trustee company
- A solicitor
- An NSW Guardian
Before January 2013, the Court required probate applicants to put an advertisement into newspaper at least 14 days prior to requesting of grant for probate. After January 2013, published notices are not sufficient. Any intent to apply must be announced at the website of Supreme Court Online Registry.
Affidavits and Summons
A number of documents are required when applying for probate in the Supreme Court of NSW. The main documents are:
- Executor’s affidavit
- Summons for probate
However, for applications with complex cases, more documents may be required.
Affidavits are filed along with the following supporting documents:
- Death certificate
- List of deceased’s assets and liabilities
- Copy of the newspaper advertisement
Also, the affidavit must indicate if the deceased left additional documents declaring their last Will. If any of the document has been found incorrectly filled out or missing some information, a requisition or a letter requesting for correction will be served.
The Grant of Probate
The probate is granted in common form if there are no conflicts about the testament. However, when the Will is declared invalid, the probate will be denied, and a case may be filed in Court. After the dispute, the Court will grant probate in solemn form.
No Appointed Executor
In this scenario, the Court is responsible for appointing an administrator (example: main beneficiary), to implement the terms of the will.
No Actions from the Executor
Appointed executors can decide whether to take responsibility. To decline, they can just file a renunciation to the registry. However, the executor can also nominate someone to take their place; usually from a private trustee company or NSW Trustee. If desired, the beneficiary can also file an application to be an administrator of the deceased’s property.
The Executor Dies Before the Creator of the Will
This is a common case for wills that have been created for a long time ago. In the absence of an executor, an administrator will be appointed by the Court.
The Executor Dies After the Creator of the Will?
This dilemma occurs in rare circumstances. However, this can be avoided if the creator of the Will appoints two or more executors beforehand.
The Executor is a Minor
If there is only one executor and they happen to be under 18 years of age and has the lack of capacity to administer properly, a guardian will be appointed by the Court as the administrator until the executor reaches 18 years of age.
Role of Trustees
There are times when the creator of the Will states certain provisions (example: support and protection of minors). In these cases, a trustee is needed. Usually, the executor plays the role of managing funds or assets for one or more beneficiaries.
Contesting Wills FAQ
Why do people contest Wills?
People contest Wills when they think a Will is invalid or unfair due to various reasons.
What are some grounds for contesting Wills?
You may contest a Will if you think the Will was made under undue influence. For example, when making the Will, the deceased’s testamentary capacity was influenced or pressured by a person who stands to gain from the Will. You may also contest a Will if you believe that the deceased was not in a capable state of mind when making the Will.
Other grounds for contesting a Will is if you have been left out of a Will or you have been left with a share of the estate that can’t provide for you adequately. To be eligible, you must be close to the deceased. For example, you were the spouse, a former spouse, the child, family member, or dependent of the deceased. If you are married to the deceased, you can use your Spouse Rights in the Court.
What do applicants need to prove when contesting Wills in New South Wales?
Applicants need to prove several facts when contesting Wills. First of all, they have to prove that the deceased was a permanent resident of NSW who had assets in the state.
Secondly, they have to prove that they are eligible to contest the Will. Typically, they have to be close relatives of the deceased. A parent, sibling, and step-child are not specifically listed as eligible. However, there are exceptions if the applicant can prove that they had close family relationships with the deceased.
What is Adequate Provision?
Adequate provision means that a number of resources provided in the Will is sufficient for a person to live comfortably according to the standard of living he or she has become accustomed to.
The Court will consider various factors including a person’s needs for accommodations, medical expenses, education, debts owed, as well as any unforeseen events in the future. If the Court decides that the deceased hasn’t left enough money to provide for the applicant, it may make a family provision order based on the information provided.
What does a Court consider?
When determining whether to make a family provision order, the Court in NSW considers a number of factors including:
- The deceased’s relationship with the applicant
- The deceased’s obligations and responsibilities to the applicant
- The size of the deceased’s estate
- The applicant’s conduct and character
- The applicant’s financial condition
- The age, physical and mental states of the applicant
- The deceased’s provision to the applicant during his or her lifetime
What are the time limits for contesting Wills?
When disputing Wills, applicants must submit their claim to the Court within 12 months of the deceased’s death.
In some cases, a time limit becomes null and void so solicitors can submit late applications. If you’re late in challenging a Will, you should contact your solicitor right away.
Choosing a Probate Lawyer
When choosing a probate lawyer to help you with a Will dispute, you should make sure that the lawyer fits the following criteria:
- The person is an experienced probate lawyer.
- The person is knowledgeable in estate litigation.
- The person responds to your needs in a timely manner.
- The person is trustworthy and understanding.
What will your probate attorney do?
Your solicitor will provide legal advice, gather all the information, contact the Executor of the Will, and submit your claim. If there is a need to involve the Court, your solicitor will act as your personal representative, submit an application and arrange statements for everyone involved. Once the application is submitted, your solicitor will attend the first Court date on your behalf and exchange statements of the claim. Your solicitor may arrange for mediation to settle the claim. If the claim cannot be settled through mediation, your solicitor will prepare you for trial and attend the trial with you.
Let Us Help You with your Contested Will Matter
We have extensive experience in a range of disputes and other estate matters. Our estate lawyers can help determine whether you’re entitled to make a claim and will let you know what the outcome is likely to be. We give you legal information so you can increase your success rate of contesting a Will by working with an experienced law firm.
DISCLAIMER: The content of this publication does not constitute legal advice and is intended only to provide a summary and general overview. We do not guarantee that it is current. You should seek specialist legal advice or other professional advice about your specific circumstances. Your access to this publication is not intended to create nor does it create a solicitor-client relationship between you and Unified Lawyers.