Four Mistakes To Avoid When Contesting A Will

In New South Wales, the prospect of contesting a will can seem daunting. Contesting a will can indeed be a difficult and drawn-out process, especially for people who try to go it alone. It can also be an emotionally taxing process, especially if the claimant has an already complicated relationship with the executor of the estate. An experienced solicitor may be able to negotiate a settlement with the executor more effectively to avoid unnecessary court action. This article outlines four common mistakes to avoid when contesting a will in New South Wales.

Common Mistake #1: Not Understanding Your Rights

Succession law is inherently complex, and the rules differ between the Australian states and territories. Unless someone is familiar with succession law in New South Wales, they are probably not fully aware of their rights under the Succession Act 2006. A prospective claimant must understand their legal entitlement to make a Family Provision Claim in NSW. For instance, only certain people in the deceased’s life are entitled to claim against the deceased estate. These people can make a claim regardless of whether they were disinherited entirely or just unpleasantly surprised by the size of their bequest.

Common Mistake #2: Missing Deadlines

It can be a challenge to focus on administrative details after a family member’s death. Still, a prospective claimant must take note of the statutory deadline that applies to disputing the terms of a will. In NSW, a claimant should notify the executor of the estate as soon as possible to prevent the executor from distributing the deceased estate. Legally, a claimant must file a formal Family Provision Claim with the Supreme Court of NSW in the twelve months after the testator’s death. There is a narrow allowance for a late application after this deadline, but the claimant must have a convincing reason for the delay. For instance, the claimant may be unaware of the testator’s death or may receive inaccurate legal advice that delays an application. Even if it seems too late to make a claim, a prospective claimant should consult a solicitor to see if they have any chance of making an out-of-time application. 

Common Mistake #3: Failing to Negotiate With The Executor

When the claimant notifies the executor of their intention to claim, this is the first opportunity to settle the matter privately. The executor is responsible for defending the will in any legal proceeding, but they are obligated to settle valid claims to avoid costly and unnecessary litigation. As such, the executor is often willing to negotiate a settlement with a claimant if the merits of the claim outweigh the rights of other claimants and beneficiaries.

When a claimant negotiates privately with an executor, it can be difficult to know when to settle and when to hold out for a larger settlement. A claimant is rarely familiar with the legal rules and precedents that inform settlement proceedings. An experienced solicitor can help a claimant negotiate and recognise a reasonable settlement offer.

It is wise for a claimant to accept if the executor offers a reasonable settlement offer. If the case proceeds to court and the claimant receives a smaller court-ordered settlement, the court might force the claimant to pay the estate’s legal costs.

Common Mistake # 4: Going It Alone

A claimant can avoid many of the mistakes they might make by getting expert legal advice as early as possible in the process. A solicitor can provide a claimant with advice at the outset on their eligibility to claim and the likelihood of securing further provision from the estate. Seeking legal advice ensures that the claimant is not wasting their time and funds with a meritless claim.  

A succession law solicitor can act as an advocate during negotiations with the executor or their solicitors. A claimant may well be able to secure a private settlement with the assistance of an experienced solicitor. If the case does proceed to a court hearing, an experienced solicitor can present a claim in the best light and can more easily rebut opposing counsel’s arguments and evidence.  

A claimant may be hesitant to engage a solicitor because of the costs involved in pursuing a legal dispute. Many claimants are in financial need and cannot afford upfront legal fees. Armstrong Legal will often act on a “No Win, No Fee” basis in Family Provision Claims so that fees are only payable if the client is successful in their claim. In this way, Armstrong Legal shares the risk with their clients because they are confident in the prospects of success.

This article outlines some mistakes that self-represented claimants commonly encounter when contesting a will in NSW. You can avoid these missteps and improve your chances of success by contacting the civil lawyers at GTC Lawyers. Please contact our specialist team on 1300 038 223 today for assistance with your Family Provision Claim.

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Armstrong Legal in 2020.
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