Contesting Wills & Estate Litigation: Sydney Lawyers
Sydney Estate Litigation Lawyers
If you believe you have been inadequately provided for in someone’s Will, we can help you get what you are legally entitled to.
Attwood Marshall Lawyers are highly respected in the legal industry as experts in estate litigation and Succession Law, with a dedicated team that practice exclusively in this area.
Our Sydney Lawyers will evaluate your claim and provide you with swift feedback regarding your prospects of success. Making a Family Provision Application to the Supreme Court can be a daunting experience, however our team will do everything they can to reduce your stress, and keep you updated throughout the entire process.
We are proud of our long-standing history achieving a high rate of success in Family Provision Claims. Find out where you stand today.
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You can make a Family Provision Claim in NSW if you believe you have not been adequately provided for under the terms of a Will or under the rules of intestacy, and if you are a person that falls within the categories of eligibility set by legislation.
You will need to prove that adequate provision has not been made for your maintenance, education, and advancement in life.
In New South Wales, an eligible person is considered to be:
- A spouse; for example, the wife or the husband of the deceased;
- A former wife or husband;
- A de facto partner (including same sex couples);
- A child of the deceased person, including an adopted child. Stepchildren are not automatically eligible to make a family provision application in NSW unless they are able to demonstrate dependency on the deceased person for accommodation, as well as proving that they were, at any particular time, a member of the same household of which the deceased person was a member;
- A person who was dependent on the deceased person. This could be the deceased’s parent, or the parent of a surviving child of the deceased person under the age of 18 years of age, or a minor who was wholly or substantially supported by the deceased person at the time of their death.
Strict time limits are applicable; therefore, it is imperative that you act promptly if you intend to contest a Will.
In New South Wales, a Family Provision Claim must be filed within 12 months from the date of the deceased’s death.
The Court has the discretion to direct a Family Provision Application beyond the 12-month time limitation, however the onus is on the applicant to establish sufficient grounds for extending the time limit.
The most significant considerations for the Court in exercising the discretion include:
- If there is an appropriate explanation for the delay
- If the beneficiaries are prejudiced
- If the estate remains intact.
Firstly, the person making the family provision claim needs to be deemed eligible to do so. Once eligibility is established, the two-step legal test applied to a Family Provision Application is as follows:
- Whether adequate provision has been provided under the Will of the deceased for the applicant’s proper maintenance, education, and advancement in life, or alternatively under the rules of intestacy;
- If it is proven that the deceased has inadequately provided for the applicant, a Court will determine what further provision ought to be made out of the estate in favour of the applicant.
The Court will examine all the relevant facts of the case, including the following:
- The relationship between the deceased person and the applicant;
- What obligations or responsibilities were owed by the deceased person to the applicant;
- Valuation and location of the estate of the deceased;
- The financial circumstances of the applicant, including their current and future needs;
- Whether the applicant is financially supported by another person;
- If there is any other person who is responsible to support the applicant;
- If the applicant suffers from any physical, mental or intellectual disabilities;
- The age of the applicant;
- The applicant’s character
- If the applicant made any contributions to the deceased person’s estate to increase its value;
- Whether the deceased person had already made provision for the applicant during their lifetime or from their estate;
- Whether the deceased person supported the applicant or provided maintenance and assistance;
- If any other claims have been made on the estate;
- Anything else the Court considers relevant.
Making a Family Provision Application usually involves the Supreme Court, which can result in significant costs. The legal costs incurred will depend upon the issues you choose to pursue and the extent you wish to pursue them. The conduct of all parties involved in the litigation can also play a significant role in the legal fees incurred. We take on many litigation cases on a ‘No Win, No Fee’ or deferred payment basis, subject to our determination of the client having reasonable prospects of success.
If you would like to find out more about the costs involved in making a Family Provision Application or our legal fees, please contact us any time on 1800 621 071 to find out more.
The costs of a Family Provision Claim are at the absolute discretion of the court. Usually, the successful party in legal proceedings will have some of their legal fees paid by the other party.
The court may consider:
- whether a party has failed to comply with the rules or a practice direction of the court;
- whether irrelevant material was put before the court;
- the estate size and value;
- any offer of settlement made by the parties; and
- any other factors the court considers relevant.
If the applicant is unsuccessful in their claim, the Judge may make no order as to costs. What this means is that the applicant would then be responsible to pay for their own legal fees. The applicant may also be required to contribute to the executor’s costs incurred when defending the proceedings.
It is for this reason that it is imperative that you get the right advice from the start from an experienced estate litigation lawyer who can assess your claim and determine your prospects of success before you begin your application. Our Sydney lawyers will advise you on the strength of your case and likely outcome, including any expected costs.