The Top 3 Mistakes to Avoid When Contesting a Will

Contesting a Will

There is a common misconception that Will disputes only occur in higher wealth or “rich” individual estates. However, this is often not the case.

The everyday person who has unfairly been left out of a Will are entitled to contest the Will by way of making a Family Provision claim if they are an “eligible person” as defined by section 57 of the Succession Act 2006 (NSW).

However, often people make mistakes early on that cost them dearly and deny them the opportunity to reach a timely and cost-effective outcome.

The purpose of this post is to prevent something similar from happening to you. Here, we run through the mistakes people make when contesting a Will and how to avoid them. 

Waiting Too Long

There are time limitations for filing a family provision claim with the Supreme Court of NSW and therefore, if you wait too long you may lose your opportunity or right to make a claim.

You must file your family provision claim within 12 months of the date of death of the deceased person.

To avoid any complications, it is also recommended that the Executor or Administrator be notified of your intention to make a claim within 6 months of the deceased person’s death date.

The Court may extend the time to file your family provision claim in certain circumstances, however only where there is sufficient reasons for the delay.

Given that this extension of time is not guaranteed, it is recommended that you act early, or otherwise seek advice as to the strength of your reasons for the delay, the strength of the claim itself, the status of the distribution of the estate and any other prejudice that may be suffered by the other beneficiaries of the estate.

Failing To Engage An Experienced Solicitor

Whilst you are permitted to file a family provision claim to the Supreme Court of NSW directly yourself, there are advantages to engaging a Solicitor experienced in estate litigation.

An experienced solicitor can mitigate the risk of mistakes that might jeopardise your claim, including the drafting of the application and supporting evidence to be filed.

Additionally, engaging a solicitor who is able to give advice regarding your realistic prospects of success can ensure that you are eligible to claim in the first place, and further ensure the strength of your claim.

Lastly, the legal process is often complicated and often requires a level of expertise to navigate. Therefore, engaging a solicitor may remove this worry by authorising them to represent you and communicate on your behalf including when negotiating with other lawyers, the Court, and other beneficiaries and/or the Executor.  

Failing To Accept A Good Settlement Offer

Lastly, it is important to recognise reasonable offers of settlement when they are expressed.

Failing to accept a reasonable settlement offer when it is made could result in a number of potential consequences, including unnecessarily long and protracted proceedings and potentially adverse costs consequences.

It is therefore important that you have received appropriate advice to ensure that you either have not overestimated or underestimated the provision that you seek to receive from the estate which can assist you in accepting or rejecting offers of settlement made.

Fortunately, experienced lawyers can help you avoid these mistakes by providing advice on when to accept an offer and when not to.

Get Help Contesting A Will 

If you would like to find out whether you are eligible to make a family provision claim or otherwise would like assistance in navigating your family provision claim, please reach out to one of Family Focus Legal’s friendly and experienced solicitors today by calling (02) 4655 4224 for an initial consultation.

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