You can challenge a Will in NSW if you are a beneficiary under a previous valid Will, or if you would be entitled to a share of the estate under the rules of intestacy. If someone dies without a valid Will they are said to have died “intestate”. This means their assets will be distributed amongst their surviving relatives in accordance with the rules in the Succession Act 2006.
In NSW, the main rules for distribution on intestacy are as follows:
If you are eligible and you want to challenge a Will, you may call WillClaim on (02) 8875 7792
Unlike a claim for family provision, there is no strict time limit for challenging a Will. However, you may need to act quickly to ensure that the executor has not already distributed the estate.
After an executor is legally empowered to deal with the assets of a deceased person’s estate (usually after receiving a grant of Probate or Letters of Administration) the assets and interests held by the deceased can be called in and distributed.
In NSW, an executor will usually not distribute an estate prior to six months from the deceased’s date of death, but in some cases, distribution may take place sooner. You should therefore immediately seek legal advice to protect your rights. If you are challenging a Will.
Call WillClaim now on (02) 8875 7792. Our legal team can arrange a free appraisal and determine if your case is winnable.
Based on our experience in dealing with Will Disputes cases in NSW, the following are the common grounds for challenging a Will:
The Court will consider the following questions in determining the validity of a Will:
“Testamentary capacity” is the mental capacity required to create a valid Will. Specifically, anyone who creates a Will must understand:
In order to challenge a Will on the basis that the Testator lacked mental capacity, you must first prove that they suffered from:
You need to be prepared for the possibility that you will have to go to Court, but most claims are settled well in advance of a Court hearing. However, even if the matter does not go to a hearing you may be required to attend a mediation with the Executor of the estate.
A mediation is a meeting between the parties and their legal representatives which is facilitated by an independent mediator. The mediator helps the parties to work through options and see if you can agree on settlement.
While meeting with the other side in a mediation or at Court can be stressful, you can be sure that your WillClaim lawyers can guide you throughout the process.