Your family members can contest your Will 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.
Contesting a Will
A person can transfer his estate to whosoever he wishes to, through his Will, but the freedom of disposition of an estate is partly true.
In some cases, family provision legislation seeks to rectify injustice caused by any Will. The amended Succession Act, 2006 (NSW) (“the Act”), which came into force on 1 March 2009, significantly extended the range of people capable of making claim against a Will. However, the claim should be made soon after the death and before the assets in the deceased estate are distributed to various beneficiaries provided in the Will.
The 2009 amendment reduced the period of bringing a family provision claim from 18 months to 12 months from the date of expiry of the testator. Under the legislation, there are six categorised “eligible person” who could make family provision claim.
Contested Will claims in most cases settle before the matter reaches to the final hearing in the Court. In this process, the disputing parties resolve their conflicts between themselves.
Both the parties are represented by a negotiator who assists them to reach to a favourable possible outcome.
Mediation is a process where a neutral, third party is appointed as a Mediator to try and help the parties in dispute, to discuss about the problems and find possible solutions that may be acceptable to both sides and thereby reach a settlement.
Over 90% of contested Will claims are settled either at or before the Mediation process. The parties are not required to go to Court if a settlement is reached at the Mediation process.
Before hearing the claims, the Supreme Court has the power to order the parties to attend a Mediation process.
Instead of having the claim determined by the Court, a party can also choose to go for an Arbitration process, whereby the claim is heard and determined by an Arbitrator. The Arbitrator will hear the contentions of both sides and then will reach on a legally binding ruling.
If the contested Will claim does not settle either at Mediation or at Arbitration process, then one needs to apply to the Court as it is the last option available.
The application should be made to the Court soon after the death of the testator and before the assets in the deceased estate are distributed to the various beneficiaries in accordance to the Will.
The time period for contesting a Will varies from one State to another.
The team at Owen Hodge Lawyers are adroit at dispute resolution through the use of various appropriate dispute resolution methods including Negotiation, Mediation, Arbitration and Litigation.