How to Contest a Will If Unfair NSW
What to do if you feel you have been unfairly left Out of a Will
There are many circumstances in which a person feels they have been completely left out of a Will or in some situations unfairly accounted for when a will has been drafted. In NSW this is known as contesting a will.
A person can choose to contest a will if they feel its unfair in a number of situations. Some common examples are as follows:
- If the person was estranged from their parent at the time of their death but the relationship may have been brought about by the parent’s ill treatment of that child.
- If a person gave up their employment to nurse, care for or provide support for a spouse or de facto partner or parent and they may not feel that they have received appropriate compensation for this sacrifice.
- If the person suffers from a disability and their family member and carer has not encountered for this additional fact when making provision in the will.
What Will the Court Look At?
There are a number of situations and each situation is different, however, there are a number of guiding principles that the court will look at when considering if a will is unfair and if they should change the distribution of the estate after somebody dies. This can include the following:
- The closeness of the relationship with the deceased person.
- The needs of the person applying relative to other beneficiaries under the will.
- Any type of special relationship.
- If there was an obligation on the person who has died to provide for the person who is now seeking a larger share of the estate.
Time Limits
If you are wanting to contest a will you need to act promptly as there are very strict time limits that apply and its often difficult to seek to proceed out of time. If you have lost a loved one and feel that you need to take action, do this without delay.
The court has some general information about this area on its website, link below. Or call our friendly team to discuss your specific situation.
Contested proceedings | Supreme Court of NSW
Some Case Examples
Our office assisted an adult child of the deceased when he felt he had been unfairly left out of his fathers will. John had 2 other siblings and his mother had passed about 5 years prior. His father and John had a disagreement about a year before his father died. John was unaware that his father had in that year updated his will and removed John as a beneficiary. His two other siblings received the while estate.
John had significant debts and a long-term mental health issue that impacted his ability to work full-time. He also had 2 young daughters that were financially dependent on him. We were able to successfully argue that John had been unfairly left out of the will and make an application in the Supreme Court of NSW. We attended mediation through the court and negotiated a settlement between John and his siblings. The matter settled without requiring a hearing.
We also represented a wife in proceedings commenced by her stepchildren after her husband died. The wife had married her Husband after he had divorced the children’s mother. Her husband was completely estranged from his two adult children for many years before he died. The children argued they should receive one third of the estate each, leaving our client only one third. Under the will our client received the entire estate including superannuation.
We were able to make an offer to settle before the matter went to a hearing by offering a small cash payment to each child. The matter settled with our client only paying a minimal amount and far less than she would have paid had the matter gone to a hearing. Our client was very happy with the outcome.
Our expert team of Wills and Estates Lawyers can assist. Contact our office for further information on (02) 8607 7184.