PENRITH CONTEST WILL LAWYERS
Expert Probate and Will Lawyers
62 Warwick Street, Penrith NSW 2750
After the death of a loved one the Executor of the Will will start carrying out the terms of the Will and this in most cases involves an Application for a Grant of Probate from the Supreme Court in NSW.
There are many circumstances that arise in which the Will may either be updated or a person may feel they have been unfairly left out of a Will or there could be concerns about the circumstances in which the Will was executed such as matters arising from lack of capacity, confusion or duress. If these situations arise there is the possibility to contest a Will even after Probate is granted.
What is a Grant of Probate?
In New South Wales the Court issues a Grant of Probate this legally recognises the Executor of the Will and gives them authority to handle the estate of someone who has passed away. Probate is a necessity in most situations before an Executor can take control of a person’s assets and is often required to be produced to a bank or shareholding and in most cases a superfund will also ask for the terms of the Will depending on whether or not there is a binding nomination in place. The Grant effectively validates the Will pursuant to the legislation in the Supreme Court of NSW.
Can I contest a Will after Probate is granted in NSW?
In New South Wales you can contest a Will after Probate is granted and in fact many parties do. However, time is certainly of the essence as in most situations after a period of 6 months an Executor can start distributing assets pursuant to the Will and there is usually nothing preventing them from doing so. This is why it is important to receive legal advice immediately after the death of a loved one if you feel that you do wish to contest the Will and even if Probate has already been granted so that your solicitor can assist you to act quickly before assets are distributed.
What reasons are there to contest a Will after Probate is granted?
The reasons for contesting a Will are the same after Probate is granted as before Probate is granted under the current legislation a person must be firstly an eligible person and there are a number of persons that constitute this including spouses, beneficiaries and in some circumstances carers.
When looking at the circumstances in which the contest is made there are a number of factors and these can include things such as the quality of the relationship with the person that made the Will, your financial needs and the financial needs of other beneficiaries under the Will, the actions of parties that are receiving benefit from the Will including in some situations the Executors themselves as well as your support requirements and your physical or mental capacity.
The court will also look a situations such as the Will makers finances, their property and circumstances of their estate during their lifetime including if any gifts or distributions were made prior to their death.
There are also a number of other reasons in which a Will can be contested and these are more legally complicated. They can relate to concerns about the capacity of the person that made the Will, whether they were of sound mind or whether or not there was some type of undue influence or duress by a family member at the time a Will was made or updated.
When can you contest a Will after Probate?
If you are legally eligible and have grounds for a claim in New South Wales the time frame is 12 months from the date of death however there are some limited circumstances in which an extension can be granted.
We recommend that you immediately take action and speak to a lawyer at the earliest available opportunity if you have any concerns whatsoever both prior to and after Probate is granted.
Summary
In summary, the circumstances for contesting a Will before Probate is granted are identical to those after Probate is granted. Eligible persons have a right to make an application in the Supreme Court of New South Wales to contest a Will if they meet the eligibility test and have received legal advice about their rights and entitlements.
These are legally complex matters that are often quite challenging and it is important to have an expert lawyer that understand this area and practises in this jurisdiction on a regular basis.
Contact our team for further information reception@rafton.com.au.