Contesting A Will With A Family Provision Claim

Been left out of a Will? Have you received less than your reasonable share of the estate? Our expert Will dispute lawyers are here to help you file a Family Provision Claim.

Whether you have been excluded from a Will or feel that you deserve a larger share than you were left, it may be possible to make a Family Provision Claim on the Deceased’s Estate. With a successful claim, the Court will make Orders that alter the asset distribution.

Disputing your loved one’s final intentions is an emotional and difficult decision to make. Contesting a Will can be a challenging legal process but you do not have to do it alone. Our Will dispute lawyer will guide you through the steps, with the technical expertise and personal understanding to handle the complexities and sensitivities of family provision law.

While each person who makes a Will has a right to determine who they wish to provide for in their Estate, New South Wales legislation gives the Court the power to amend the terms of a Will to ensure that certain people are fairly considered in distribution of an Estate. As these laws can be very complicated, we strongly recommend working with an expert Estate litigation lawyer.

If your situation concerns the contesting or challenging of a Will, our expert lawyers are here to help you settle your dispute and secure the provision you are entitled to.

Laws pertaining to Estate administration can be particularly complex. It is important to seek advice from a Will dispute lawyer with specialised knowledge and extensive experience.

At Rankin Ellison, we take pride in our provision of professional and personalised support to families during this difficult time. The level of trust and confidence we maintain is reflected in the fact that we often hold Wills and Estate documentation for several generations of the same family who continue to conduct their most meaningful and important affairs with our team.

FAQ

The persons who are eligible to make a claim include the Deceased’s spouse or former spouse, de facto partner, child (by birth or adoption). However, if you are able to establish that you were a member of the Deceased’s person’s household or were dependent on the Deceased, you may be eligible to make a claim.

You may be eligible to contest a Will if:

  • You were not left proper provision in the Will
  • You were promised a particular portion of the Estate and this has not occurred
  • The Will maker lacked the mental capacity to fully understand what they were doing when they made the Will
  • The Will maker was under unreasonable pressure or influence from someone at the time of Will preparation

To make a Family Provision Claim, you must file a Summons and supporting Affidavit in the Supreme Court of New South Wales. The Summons lists the Orders you are requesting the Court make. The supporting Affidavit tells your story and outlines the reasons why you say the Court should make the Orders you propose.

If you are contesting the validity of a Will, note that this claim must be lodged before obtaining a Grant of Probate.

In NSW, you must make a Family Provision Claim within 12 months from the date of death.

The process of contesting a Will varies depending upon the willingness of the parties to reach an agreement, the number of parties and complexities of the estate. Most cases should be resolved within six months but difficult cases can take years it litigated through the Court.

If the Family Provision Claim is successful, the Claimant’s costs are generally covered by the Estate. If unsuccessful, the Judge may order the Claimant to pay both their own and the Estate’s legal fees.