Frequently Asked Questions

If you believe a Will is unfair or invalid, you have several options. Understanding which type of claim best fits your situation is the first step. The four main ways to contest a Will are:

1. Family provision claim

This is the most common type of inheritance dispute. It applies when you believe the Will does not provide adequate financial support for your proper maintenance and future needs. To make a successful claim, you must demonstrate to the court why you needed more from the estate than what you received.

2. Lack of capacity

You can challenge the Will if you believe the person who made it (the "will-maker" or "testator") was not of sound mind when they signed it. For example, if you were a beneficiary in a previous Will but were removed in a later version, you might argue the will-maker lacked the mental capacity to understand the change they were making.

3. Undue influence

This claim is appropriate if you can prove that the will-maker was pressured or coerced by another person. If someone forced them to sign a Will that did not reflect their true wishes, it may be deemed invalid due to undue influence.

4. Breach of trust

If you are a beneficiary of the Will and believe the person in charge of managing the estate (the "executor") is not following the deceased’s instructions correctly, you can make a claim for breach of trust. This holds the executor accountable for their responsibilities.

Being left out of a Will can be hurtful and create significant financial hardship. If you feel this is unjust, it is important to act quickly. We recommend you take the following steps as soon as possible:

1. Get a copy of the Will: Contact the executor or their solicitor and request a copy of the Will. This is your first step to understanding the situation.

2. Gather your information: Start collecting any evidence you have about the deceased’s assets, your relationship with them, and your own financial circumstances. This information will be crucial for building your case.

3. Speak to a will dispute lawyer: Strict time limits apply for contesting a Will, and the estate could be distributed before you have a chance to make a claim. An expert lawyer can explain your options and guide you forward.

A specialist will dispute lawyer can explain your options and guide you on the best path forward. Call us now on 1800 571 113 for a free initial consultation.

Going to court, or "litigation," is often an emotionally draining and stressful process. When this happens after losing a loved one, feelings of hurt, grief, and betrayal can be amplified. Many people also find dealing with lawyers and the legal system intimidating. The possibility of having to pay legal costs can add another layer of stress.

We understand these challenges. Our goal is to make the process as manageable as possible by providing clear, professional advice in a caring and timely manner. We want you to understand your position from the beginning, removing as much uncertainty as we can.

While not essential, some people find it helpful to seek support from counselling, financial planning, or family assistance services. Navigating an inheritance dispute can be emotionally taxing, and having extra support can make a significant difference.

Superannuation is not automatically included in an estate. However, in New South Wales, the concept of "notional estate" allows the court to treat certain assets, like superannuation, as part of the estate in specific circumstances. For instance, if the estate does not have sufficient funds to provide for an eligible person, the court may decide to include superannuation funds to make adequate provision.

No, being an "eligible person" does not guarantee you will receive a portion of the estate. It is only the first requirement. To make a successful family provision claim, two conditions must be met:

1. You must first prove you qualify as an ‘eligible person’ under the law. This includes spouses, children, and certain dependents.

2. The court must then determine that the Will did not make adequate provision for your proper maintenance and advancement in life.

The court will examine all the circumstances before deciding whether to alter the deceased’s Will.

The court will examine the entire history of your relationship with the deceased. This review will focus on past events, your current financial needs, and what is likely to happen in the future to determine the level of financial dependency you had.

There is no automatic rule, but courts generally consider it a testator's duty to provide their surviving spouse with a secure place to live. A "right of residence" is often seen as an unsatisfactory solution because it can be insecure. For example, if you need to move into aged care due to sickness, you could lose your right to the home and be left with no assets for your future accommodation. For this reason, courts often award the property outright to the spouse.

Yes. If you believe the amount you received is not adequate for your needs, you can contest the Will by making a family provision claim. To do this, you must first be an ‘eligible person’. The court will then assess your financial circumstances, your relationship with the deceased, and the size of the estate to determine if further provision should be made for you.

Yes, you can. However, to make a successful claim for provision, you must demonstrate more than just an emotional relationship. The court will look for evidence of financial dependency or a shared household. If your dependency was solely emotional, the court is unlikely to accept your claim.

The term "lawyer" is a general one for anyone who practises law. In Australia, the legal profession is divided into two main types of lawyers: solicitors and barristers.

• Solicitor: A solicitor handles the day-to-day legal needs of clients. They manage paperwork, provide advice, and communicate with the other parties. They are your primary legal contact. While they can appear in court, they usually work outside of it.

• Barrister: A barrister is a specialist advocate who represents clients in court. T hey are experts in litigation and court procedures. In a will dispute, a barrister argues your case before a judge.

For any court matter, you will need a solicitor to manage your case. If your will dispute proceeds to a mediation or a court hearing, you will generally also need a barrister to represent you. Engaging a barrister early in the process can often save time and money, as they can provide expert advice on your chances of success and the best strategy to take. Your solicitor will discuss with you if and when a barrister is needed.

It is often beneficial to involve a barrister early in the process. They can provide expert advice on your chances of success and the best legal strategy, which can save you time, money, and stress. A barrister is typically involved from the beginning to guide how the case should be run.

In a will dispute, the court’s primary role is to ensure that adequate provision is made for the applicant's proper maintenance, education, and advancement in life, considering all the circumstances. The court does not aim to create what it thinks is a "fair" distribution of assets. Instead, its function is is to correct a Will that has failed to adequately provide for an eligible person.

When you engage Dormer Stanhope, we manage the entire legal process for you, removing as much stress as possible during a difficult time. We understand how emotional these disputes can be and will handle your claim with respect and support.

Step 1: Initial Discussion. You contact us to discuss your situation. We will tell you if you have grounds to contest the Will or make a claim against the estate.

Step 2: Detailed Appointment. If you have a case, we will arrange a meeting to gather more details about your claim.

Step 3: Assessment and Strategy. We assess the size of the estate and any competing claims, then determine the best way to resolve your dispute.

Step 4: Commencing Proceedings. We prepare and file all necessary court documents on your behalf to formally start the legal process.

Step 5: Resolution. We conduct your case to ensure it is finalised as quickly and cost-effectively as possible. In NSW, mediation is compulsory before a final hearing, which helps resolve most disputes without incurring significant legal costs.