If you have been left out of a Will, believe you have not been adequately provided for, or you are an executor facing a claim against an estate, obtaining specialist advice early can make a significant difference.
Rayners Lawyers is a Port Macquarie law firm specialising in Wills & Estates Law. We act for both people contesting Wills and executors defending estates in family provision claims, contested estates and Will disputes throughout New South Wales.
Whether you are considering making a claim or have received notice that an estate you administer may be challenged, we can help you understand your position, assess the issues and develop a clear strategy for resolving the dispute.
There are different ways in which a Will or estate may be contested.
One of the most common is a family provision claim. This is an application to the Supreme Court of New South Wales by an eligible person seeking provision, or further provision, from a deceased person’s estate.
A family provision claim may be available where you have:
Importantly, being eligible to make a claim does not automatically mean that a claim will succeed. The circumstances of the deceased, the claimant, the estate and other beneficiaries are all relevant.
For a family provision claim, you must first be an eligible person under the Succession Act 2006 (NSW).
Eligible persons can include:
For some categories of eligible persons, additional requirements must be satisfied before the Court can make an order.
We can assess your individual circumstances and advise whether you are eligible to make a claim and the matters likely to be relevant to your case.
Being excluded from the Will of a parent, spouse or other loved one — or receiving substantially less than other beneficiaries — can be difficult both financially and emotionally.
The first question is not simply whether the Will appears unfair. The issue is whether the law allows you to make a claim and, if so, whether the deceased’s estate has made adequate provision for your proper maintenance, education or advancement in life.
When advising you, we consider matters including:
your relationship with the deceased;
Time limits apply.
A family provision application in New South Wales generally needs to be commenced within 12 months from the date of the deceased person’s death.
The Court has power to permit an application outside that period in some circumstances, but an extension should never be assumed.
If you are considering contesting a Will, obtaining advice early can also reduce the risk of the estate being distributed before your claim has been properly addressed.
Not every Will dispute needs to end in a contested Court hearing.
Where appropriate, we seek to resolve disputes through early negotiation and mediation, with the aim of achieving a sensible resolution without unnecessary depletion of the estate through legal costs.
Where Supreme Court proceedings are necessary, family provision proceedings are ordinarily referred to mediation at an early stage.
If a negotiated resolution cannot be achieved, Rayners Lawyers can guide you through the Court process and work with experienced counsel where appropriate.
If you are the executor or administrator of an estate and a family provision claim is made or threatened, your role is very different from that of the beneficiaries.
An executor must administer the estate properly, respond appropriately to the claim and protect the interests of those interested in the estate.
Rayners Lawyers has particular experience acting for executors and administrators defending contested estates, including complex and high-value estates involving:
We work with executors, accountants, financial advisers, trustees and counsel to develop a strategy appropriate to the estate.
Obtaining advice early can give an executor more options for managing the dispute, containing costs and protecting the estate.
A family provision claim is different from challenging whether a Will itself is valid.
Questions about the validity of a Will can arise where it is alleged that:
These disputes can involve very different evidence and legal principles from a family provision claim.
Rayners Lawyers advises executors, beneficiaries and other interested parties in contested probate and Will validity disputes.
Principal Lawyer Kirsty Rayner brings energy, determination and a strategic approach to contested estate matters. A fierce negotiator, Kirsty is focused on identifying the pressure points in a dispute and pursuing the best available outcome for her clients, whether through early negotiation, mediation or Court proceedings.
Rayners Lawyers has a proven track record in family provision claims, with successful outcomes achieved for our clients both inside and outside the Courtroom. To date, we have achieved a successful outcome for our client in every family provision matter in which we have acted.
We act for both claimants seeking further provision from an estate and executors defending family provision claims, giving us valuable insight into how these disputes are approached from both sides.
From our Port Macquarie office, we represent clients in contested estate matters along with our talented, handpicked Sydney barristers throughout New South Wales and Australia.
Potentially. A child of the deceased is an eligible person for the purposes of a family provision claim in NSW. Eligibility alone does not determine whether a claim will succeed. The Court considers a range of matters relating to the claimant, the deceased, the estate and competing beneficiaries.
Potentially. If you are an eligible person, you may be able to make a family provision claim seeking provision from the estate even though the Will makes no provision for you.
Potentially. A family provision claim can seek further provision from an estate. You do not have to have been completely excluded from the Will.
A family provision application in NSW generally must be commenced within 12 months of the date of death. If you are considering a claim, you should obtain legal advice as early as possible.
The granting of Probate does not necessarily prevent a family provision claim. The relevant limitation period for a family provision application generally runs from the deceased’s date of death rather than the date Probate is granted.
Not necessarily. Many estate disputes are resolved through negotiation or mediation. Family provision proceedings that are commenced in the Supreme Court are ordinarily referred to mediation before a final hearing.
Yes, but an executor should obtain advice about their obligations and the interests of the estate and beneficiaries before agreeing to a settlement. Depending on the circumstances, Court approval may also be relevant.
The cost depends on the complexity of the estate, the issues in dispute, the evidence required and whether the matter can be resolved through negotiation or mediation or proceeds further through the Court.
We discuss likely costs and the available funding arrangements with you before you decide how to proceed.
Whether you are considering contesting a Will, have been left out of an estate, or are an executor whoneeds to defend a claim, obtaining advice early can help you understand your position and your options.
Rayners Lawyers specialises in Wills & Estates Law and acts in contested estate matters throughout New South Wales.
Contact our Port Macquarie office to arrange an initial discussion about your Will or estate dispute.
CONTACT US
[email protected]
PO Box 569, Port Macquarie NSW 2444
PORT MACQUARIE
Level 1, 2 Horton Street, Port Macquarie NSW 2444
02 6583 4312