Challenging a will can be expensive as it often involves Supreme Court proceedings. Costs can include legal fees for solicitors, court fees, and potentially, fees for expert witnesses.

However, the costs can vary greatly depending on the complexity of the case and the length of the proceedings. In some cases, the costs may be covered by the estate. It is important to seek legal advice to understand the potential costs involved in challenging a will.

The costs in a contested wills case can vary, and the party responsible for paying these costs is ultimately determined by the court if the matter is settled by the parties. In general, there are three possible outcomes regarding costs:

1. Costs paid from the estate: If the court determines that the deceased's estate is sufficient to cover the legal costs, the expenses may be paid from the assets of the estate. This means that the costs are deducted from the assets before distribution to the beneficiaries.
2. Costs paid by the unsuccessful party: The court may order the party who was unsuccessful in challenging the will to pay the legal costs of the successful party. This is a common outcome and serves as a way to discourage unfounded or unsuccessful challenges.
3. Each party bears their own costs: In some cases, the court may decide that each party is responsible for covering their own legal costs. This may be the outcome if the court believes that both parties acted reasonably in pursuing or defending the case.

The amount you might receive if you challenge a will can vary widely, and it depends on several factors, including the laws of the jurisdiction in which the will is being contested, the nature of your relationship to the deceased, the size of the estate, and the specific circumstances of the case. Challenging a will is typically done through a legal process, and the court will consider various factors in determining the outcome.

A family provision claim is a legal claim made to the Supreme Court of New South Wales to receive a portion or a larger portion of the assets left behind by a deceased individual. This claim can be initiated by an "eligible person" who has been excluded from the deceased's will or did not receive what they believed they were entitled to.

When considering a family provision claim in NSW, the court will look at a range of factors, including:

• The relationship between the applicant and the deceased.
• Any obligations or responsibilities the deceased had towards the applicant.
• The value and location of the deceased's estate.
• The financial circumstances of the applicant, including current and future needs.
• Whether the applicant is financially supported by someone else.
• Any disabilities the applicant may have.
• The age of the applicant.
• Contributions made by the applicant to the estate.
• Whether the deceased provided for the applicant during their lifetime or through the will.
• The character of the applicant.
• Any relevant customary law if the deceased was Aboriginal or Torres Strait Islander.
• Other claims on the estate.
• Any other relevant matters the court considers appropriate.

Mediation is a process where disputing parties come together to resolve their issues with the help of a neutral third party, called a mediator. The mediator facilitates the conversation, allowing each party to express their interests and needs, with the aim of negotiating a settlement that addresses these needs. The mediator remains impartial, does not provide legal advice, and does not force a solution. It's a flexible approach that can help avoid the costs and time associated with legal disputes. It is common practice for the court to order parties involved in estate litigation to participate in mediation before going to trial.

In family provision cases, mediation is mandatory unless the court decides otherwise. This means that before a claimant goes to trial, they must participate in mediation to try to resolve the dispute. The aim is to facilitate an early resolution without the need for a full court hearing, which can be costly and time-consuming. If the parties reach an agreement during mediation, they can settle the matter without further court involvement. However, if mediation does not result in a settlement, the claim may then proceed to court, where a judge will make a final decision on the claim. The vast majority of family provision claims settle before the trial.

If someone dies without a will, they are considered to have died 'intestate'. In this situation, their estate is distributed according to the intestacy rules outlined in the Succession Act 2006 (NSW). The rules determine the order of relatives who are eligible to inherit, starting with the surviving spouse and children. If there are no close relatives, the estate may eventually pass to the State.

The process can be complex and may lead to outcomes that the deceased might not have intended. For example, without a will, you cannot leave anything to friends, charities, or distant relatives who are not covered by the intestacy rules. It's also important to note that if the deceased has no eligible relatives closer than a first cousin, the government may claim the estate. Therefore, it's generally advisable to have a will to ensure your wishes are followed after your death.

No, you cannot challenge a will before the person has died. A will is a document that expresses a person’s wishes for after their death, and it only becomes effective upon their death. Therefore, it is not possible to contest the validity of a will or its provisions while the will-maker is still alive. After the person’s death, if you have concerns about the will’s validity or believe you have not been adequately provided for, you may be able to challenge the will or make a family provision claim under the Succession Act.

Grandchildren can contest a will under certain circumstances. If a grandchild believes they have not been adequately provided for, they may be able to make a family provision claim. However, they must demonstrate that they had a close relationship with the deceased and that the deceased had a responsibility to provide for their welfare. This might be the case if the grandparent acted as a parent figure or had directly assumed responsibility for the grandchild's welfare for a significant period.

It's important to note that simply being a grandchild does not automatically entitle someone to contest a will. The court will consider various factors, including the grandchild's financial needs and the nature of their relationship with the deceased. Claims must typically be made within 12 months of the death, and legal advice is recommended to navigate this process.

Yes, stepchildren can contest a will in New South Wales (NSW) under certain circumstances. They may be eligible to make a family provision claim if they can demonstrate that they were dependent on the deceased at some point or had a close relationship with them.

The court will consider various factors, such as the nature and duration of the relationship with the deceased, the stepchild's financial needs, and any obligations or responsibilities the deceased had towards the stepchild. It's important for stepchildren considering such a claim to seek legal advice, as these matters can be complex and are assessed on a case-by-case basis.

Talk to us. We offer a range of flexible fee arrangements including deferred payments and ‘no-win no-fee’. Many of our claimants opt for these arrangements.

If the deceased person had dementia when they made their will, the validity of the will can be challenged on the grounds of mental capacity. The court will look at whether the person had the necessary cognitive ability to understand the nature and effect of making a will, which is based on the legal test established in the case of Banks v Goodfellow.

The presence of dementia does not automatically mean the person lacked capacity to make a will. The court will consider if the dementia affected the person's ability to think critically, exercise judgment, and make decisions at the time the will was made. Medical evidence can be significant in these cases, but it may not be conclusive.

If the will is contested, the court will closely examine the circumstances under which the will was made, including any medical assessments of the person's mental state at the time and the complexity of the estate. If the person's dementia was mild and they understood their assets and the implications of their decisions, the will might still be considered valid.

Undue influence with respect to making a will occurs when someone exerts excessive pressure on the person making the will (the testator) to the extent that it overpowers the testator's free will, resulting in a will that reflects the influencer's wishes rather than the testator's true intentions. It's not limited to physical coercion but can also include psychological manipulation.

To prove undue influence, it must be shown that the coercion was such that it overwhelmed the testator's freedom of action without genuinely convincing their own will. The burden of proof lies with those alleging undue influence. The court will look for evidence of coercion, rather than mere persuasion, and will consider the physical and mental strength of the testator at the time the will instructions were given.

If undue influence is established, the will, or the affected parts of it, may be invalidated by the court.

Yes, you can challenge a will after probate has been granted, but it may be more difficult depending on the basis of your claim. A family provision claim for example is largely not impacted by a grant of probate, and in fact makes the claim more straightforward. If however your claim is that the deceased lacked the capacity to make the will that probate was granted on, then there will be additional hurdles that will need to be overcome on account of probate having been granted.

With all claims, its best to act fast and obtain legal advice as soon as possible to avoid additional hurdles and strict time limits that apply to certain matter types.

Notional estate is a concept in Australian law where certain assets that are not part of the deceased's actual estate can be considered by the court for the purposes of family provision claims. This can include property that the deceased may have gifted or transferred to someone else before their death, but which is deemed to fall within the scope of notional estate under certain conditions.

The court can designate property as notional estate if it was involved in a relevant property transaction, such as being given directly to a beneficiary who later sells it. If the proceeds from the sale are identifiable, they can be considered as notional estate. Even if the proceeds have been mixed with other funds, the court can still designate any other property owned by the beneficiary as notional estate.

The purpose of notional estate provisions is to ensure that eligible persons, such as family members who were not adequately provided for in the will, can make a claim against the estate. The court will consider various factors, as outlined in Section 89 of the Succession Act 2006, to determine if and how property should be designated as notional estate.