In the 2014 Wes Anderson film ‘The Grand Budapest Hotel’, the protagonist Gustave H is left a valuable renaissance painting in a codicil to the Will of a wealthy dowager. Much of the plot revolves around a dispute of the Will by the dowager’s family who accuse Gustave of murdering her. But you don’t live in the fictional Republic of Zubrowka. So, what options do you have for disputing a Will under the law in Sydney and New South Wales more generally? Here we examine Will and Estate disputes, including:
· The formal requirements for Wills in Australia;
· How Wills can be contested in court;
· The difference between contesting and challenging a Will;
· The timeline for disputing a Will.
Where There is a Will…
A Will is a legal instrument or document that sets out how an individual’s estate (i.e., their property) is to be managed and distributed after their death. An executor is appointed in the Will to have oversight of the entire process.
In Australia, the Will must be in writing (whether typed or handwritten) and it must be signed and dated by the individual whose Will it is (the ‘Will maker’ or ‘testator’). It must be signed in the presence of two witnesses who must also co-sign the Will in each other’s presence.
The Will should set out:
· Who gets what;
· Who looks after the children;
· Any trusts that are to be established;
· The amount of money to be distributed to charities;
· Funeral arrangements.
After a person dies, the Will must be ‘proven’ in court by the executor in a process known as probate. It is only after probate that the wishes expressed in Will can be carried out and assets distributed.
There is a Way…
It may turn out that, upon a loved one’s death, you expected to be included in the Will and were not, or, the amount that you were provided in the Will was not satisfactory. In those circumstances, it is possible to dispute the Will. You can ‘contest’ the Will as long as you are eligible. Sometimes this is referred to as a ‘family provision claim’.
To be eligible, under Section 57 of the Succession Act 2006 (NSW), it is required that you be:
- The spouse;
- The de facto partner;
- A child;
- A former spouse;
- A person
- who was, at any particular time, wholly or partly dependent on the deceased, and
- who is a grandchild of the deceased or was, at that particular time or at any other time, a member of their household;
- a person who was living in a close personal relationship with the deceased at the time of their death.
If you are eligible, to make a claim, it is up to you to convince the court that the Will does not provide sufficiently for you ‘maintenance, education or advancement in life’. The court, in making such an order, will take into account a range of factors including the nature of the relationship, the financial resources of the applicant, and the financial contributions to the deceased made by the applicant.
See here for more information on lodging a Will dispute in Sydney and New South Wales.
Note, also, that if you think that there was something improper or invalid in the making of the Will itself, that Will can be ‘challenged’. This might happen, for example, where you consider that there was fraud involved, or the Will was signed under undue influence or duress.
In NSW, there is 12 months from the date of death to contest the Will (with certain exceptions). Note also, that if you are considering contesting the Will, you should inform the executor of the estate as soon as possible. That way, the executor is on notice not to distribute the estate before the claim is settled. Due to the strict time frames involved, if you think you may have a potential claim, get in touch with a will dispute lawyer as soon as possible.
So, No Will, No Way?
While it is recommended that everyone have a Will in place to determine how their estate is to be dealt with on their death, this doesn’t always happen. If a loved one died without a Will, what happens? In that case, the estate is considered ‘intestate’. An ‘administrator’ is appointed by the Court and assets are distributed in accordance with default rules set out in the Succession Act 2006 (NSW).
If those rules lead to you not receiving anything, or receiving less than you believe you are entitled to, you can also contest that intestacy by making a ‘family provision’ claim, just as you would if a Will was present.
It is important that when a Will is made, it coheres with all the formal rules for Wills as set out in the law (in this case the law in NSW). However, if you feel that a loved one’s Will did not provide you with adequate provision, you could consider contesting that Will.
For more information get in touch with a Sydney estate litigation lawyer today.