Discovering a potential issue with a loved one’s Will or the administration of their estate is often distressing, particularly during a time of grief. This guide provides a basic roadmap for individuals in New South Wales facing such a situation, outlining initial considerations and the critical first steps.
Identifying the Potential Dispute Type in NSW
Understanding the nature of the potential dispute helps frame the issue. Common categories in NSW include:
- Family Provision Claim: Arises when an ‘eligible person’ – such as a spouse, child, or certain dependents as defined under the Succession Act 2006 (NSW) – believes the Will or intestacy rules failed to make adequate financial provision for their proper maintenance, education, or advancement in life. This type of claim accepts the validity of the Will but questions the fairness of the provisions made.
- Will Validity Challenge: Involves questioning the legal integrity of the Will itself. Grounds can include the deceased lacking the necessary mental capacity when signing, being subject to undue influence or pressure from another party, fraud or forgery, or the Will not meeting formal requirements like proper signing and witnessing. The objective is to have the Will declared invalid by the Court.
- Probate/Administration Disputes: Concerns arise regarding the management of the estate by the executor or administrator. This can involve unreasonable delays, mismanagement of assets, failure to communicate with beneficiaries, or disagreements over the interpretation of the Will during the administration process.
The Absolute Priority: Time Limits!
The most critical initial factor, especially for Family Provision claims, is the strict time limit.
- Family Provision Claims: An application must be filed with the NSW Supreme Court within 12 months from the date of the deceased’s death. Missing this deadline can permanently extinguish the right to make a claim. While the Court can grant an extension for “sufficient cause,” this is not guaranteed and can be challenging to obtain. Furthermore, executors may be entitled to distribute estate assets after six months from the date of death if they haven’t received notice of an intended claim, potentially complicating later recovery even if an extension is granted. Prompt action is therefore essential.
- Validity Challenges: While no equivalent statutory deadline applies before probate is granted, practical considerations make swift action vital. Challenges become significantly more complex after a grant of probate confirms the Will’s validity, and even more difficult if the estate has been distributed. Lodging a caveat to prevent a grant of probate may be necessary.
Preliminary Considerations
Initial steps involve assessing eligibility and gathering information:
- Eligibility: Does the potential claimant fall into an ‘eligible person’ category for a Family Provision claim under the Succession Act? Or do they have legal standing to challenge the Will’s validity (e.g., as a beneficiary under a prior Will or someone who would inherit if there were no Will)? Perceived unfairness alone is insufficient; legal eligibility is also required.
- Information: Gathering relevant documents early is key. This includes obtaining a copy of the Will if possible, understanding the estate’s assets and liabilities, and collecting evidence relevant to the specific claim (e.g., proof of financial need or dependency for Family Provision; medical records or witness statements for capacity challenges).
Potential Pathways & Costs
Estate disputes can progress in several ways, and costs are an essential factor:
- Pathways: Many matters, particularly Family Provision claims, are resolved through negotiation or mediation, which is often a mandatory step before a final court hearing. If resolution isn’t achieved, a formal court hearing may occur.
- Costs: Pursuing estate litigation involves significant expense. While costs are often paid from the estate, there is a real risk of personal liability for legal costs, particularly if a claim is unsuccessful or unreasonable.
The Crucial Step: Seek Early Legal Advice
NSW succession law is complex, procedures are specific, and deadlines can be absolute. Attempting to navigate a potential dispute without professional guidance carries significant risks. Obtaining advice from a specialist solicitor early provides:
- An accurate assessment of the merits of a potential claim or defence.
- A clear understanding of rights, obligations, and potential outcomes.
- Development of an appropriate strategy.
- Assurance that critical deadlines are met and legal rights are preserved.
Contact Us
RN LEGAL has assisted many clients with estate disputes, pursuing or defending FPA claims. If you or anyone you know requires assistance with Wills and Estate matters, please contact RN LEGAL on 02 91 91 92 93 or mail@rnlegal.org. Individuals who believe they may have grounds for an estate dispute in NSW, or are facing one as an executor or beneficiary, are invited to contact RN LEGAL for a no-obligation free case assessment.
Our experienced Sydney-based estate litigation team can help clarify options and discuss specific circumstances to provide tailored advice. Please call 02 91 91 92 93.