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Disputing A Will – The Court Procedure

Your Will is one of the most significant and vital documents you will ever have. It allows you to specify how your property should be managed and divided after you pass away.   Your family members can contest your Will, under the Succession Act 2006 (the Act), in situations where your Will is valid but the provisions stated in the Will are unfair. In such situations, the Court can make few changes in your Will or can distribute your estate in favour of your family members. Your Will can also be contested if it is found invalid.

 

Time Limits and Costs

  Your family members can contest your Will and can make a Family Provision claims under the Act within 12 months from the date of your death, unless the period has been extended by the Court on specific grounds.   Usually the legal costs of both the parties in a Contested Will claim or in a Family Provision claim are paid from the estate. However, the Court also has the power to order any specific party to pay for the legal costs under certain circumstances.

Owen Hodge's will dispute lawyers in Sydney can help your contest a will, or provide legal advice about challenging a will.

 

Evidence and Effects of Divorce

Evidence in matters including Contested Will claim and Family Provision claim can be obtained in many ways. However, the evidence can only be presented in the Court in the following 3 ways:

  • In the form of an Affidavit along with other supporting documents attached;
  • In the form of an oral evidence; and
  • In the form of other documents produced in the Court during hearing.

There are 2 factors that the Court needs to take into consideration while examining the effects of divorce in matters of contested Will claims, which include:

  • Whether the divorce is the factor which disentitles the former spouse from receiving any gift under the Will of the deceased; and
  • The former spouse is an eligible person to file an application to the Court for Orders regarding provisions under the Will of the deceased, if the said person has not received adequate provisions.

Life Estate Orders and Making an Application

Life estate orders are made by the Court in matters including Family Provision claims. These orders allow a person to take possession of the property for the duration of their life, irrespective of whether the said property belongs to someone else as per the Will of the deceased.

 

Your family members can make an application to the Court in matters like Family Provision claims and Contested Will claims by way of Summons issued in the Supreme Court.

 

Summons should be accompanied by Affidavits which are sworn statements setting out the evidence of the people who are making the application to the Court.

 

Order for Interim Relief

In certain circumstances, the Court needs to hold an interim hearing to determine urgent matters and make orders to provide relief to the applicant if it is necessary.

The grounds on which an application for interim hearing from the Court can be filed include:

  • Requirement of urgent payment of an amount of money from the deceased estate to meet immediate needs of the Applicant; and
  • Requirement of an urgent Order from the Court in order to safeguard a property within an estate.

Final Hearings and Appeals

Generally matters including Family Provision claims and contested will claims are resolved within the parties by way of settlement before the matters are brought before the Court.

 

The Appellant or the party who wants to file an appeal has 28 days from the date of judgement to lodge the Notice of Appeal. The party lodging the appeal needs to prove that the concerned Judge made an error in applying the law to the facts of the case.

 

Our team of Sydney-based will dispute lawyers at Owen Hodge can guide you through the entire Court procedure. Feel free to contact us for assistance and expert advice.