FAQs

We answer your questions

 

QN : 1-10

If you have been left out of a will what should you do?


If you have been left out of a will and you think this is unjust, we suggest that you take the following steps as soon as possible:

  • First, contact the executor and/or the solicitor acting for the estate (if there is one) and try to obtain a copy of the will;
  • Second, start gathering evidence about the estate if you know anything about it, your relationship with the deceased and your financial circumstances;
  • Third, contact a will dispute lawyer as soon as possible to get initial advice as to your options. It’s important to act quickly because there is a risk that the deceased’s estate could be distributed or transferred to someone else and there are also strict time limits which apply to contesting or challenging a will.
Would you like to talk to a will dispute lawyer who is an expert in contesting and challenging wills? If so, call us now on 02 9098 5750 for a free initial consultation with a wills dispute lawyer AND a succession barrister.




What are the steps which Dormers will take to resolve your wills dispute?


When Dormers accepts to act on your case, being experts in the resolution of wills and all forms of family disputes, we will take care of the entire process for you - taking as much angst and stress out of what is often a highly emotional and stressful time. We understand that loss of a loved one raises emotional issues and can often drag up painful memories which can sometimes extend back over many years. We also understand how difficult it is sometimes to stand up for yourself and fight for your true entitlements. We get it. We will handle your claim and concerns individually, respectfully and supportively. The key steps are: Step 1: You call us or meet with us, either in person or over the telephone or via Skype or Wechat to discuss the nature of your dispute or grievance and we tell you whether you have grounds to contest or challenge the will or otherwise bring a claim against the deceased’s estate. Step 2: If we think there are grounds for you to challenge the will or otherwise bring a claim against the deceased’s estate, we will arrange an appointment to meet with you to obtain more details regarding your claim at our offices. Step 3: We will identify and then assess the size and nature of the deceased’s estate (and any competing claims) and then consider the best way to resolve your wills dispute. Step 4: We will prepare the necessary court documents including the necessary evidence confirming your relationship with the deceased, your financial circumstances and current and future needs, and then file the relevant court documents on your behalf to formally commence legal proceedings. Step 5: We will conduct your case in Court in a way which ensures that the dispute is finalised as quickly as possible and a minimum of costs and fuss. In this area, it is generally compulsory for all matters to go to mediation before significant legal costs are incurred which we think is a really good thing!




On what grounds can you contest or challenge a will?


You need to understand at the outset that everyone has the right to decide who will inherit their assets after they die and generally there is no legal rule which says that a person must leave their assets to their children, friends or other family members. The law respects a person’s right to dispose of their estate as they see fit subject to some limitations. However, there are laws that allow certain people to contest or challenge another person’s will, or to make a claim against their estate, in certain circumstances. Grounds for challenging the will have previously involved disputing the validity of the will, capacity of the testator to make the will and undue influence. Contesting a will arises when you feel that you have been left out of the will or not adequately provided for. In order to do so successfully, you must be an eligible person. For a free initial consultation with an experienced will dispute lawyer and a succession barrister please call us on 02 9098 5740.




Who can challenge a will?


Disputes about the validity of Wills or entitlements under Wills arise in a number of circumstances. On some occasions, appointed beneficiaries (or other persons including the executor named in the Will) approach the Court in respect of the validity of the Will. The people who can challenge the validity of the Will are:

  • Beneficiaries named in a previous Will;
  • Beneficiaries named in the current Will; and
  • Persons who would be entitled to the estate if there was no Will (that is persons entitled under intestacy)




What happens if the deceased person didn’t have a will?


If the deceased person didn’t have a will, their property or estate is distributed according to fixed rules set down by law. The exact laws differ slightly from State to State. These “default” rules don’t consider the individual circumstances of any family members and sometimes their application can lead to unfair and unjust results. This is where an experienced will dispute lawyer may be able to help. For a free initial consultation with an experienced will disputes lawyer and a succession barrister please call us on 02 9098 5740.




What does the phrase ‘contesting a will’ mean?


‘Contesting a will’ usually refers to where a person applies to a Court under family provision legislation for part, or a larger part, of a deceased person’s estate on the grounds that they haven’t been adequately provided for by the deceased. Such an application is not about setting aside or challenging the deceased’s last will.




What is a family provision application?


Generally, a person may leave their possessions and money to any people or causes they choose. However, if one of their close family or dependants will suffer hardship as a result of their decision to give money or property to others, there may be grounds for that person to bring a Court action for provision from the estate of the deceased.

The Succession Act (NSW) 2006 allows the Supreme Court to award certain eligible persons a part of the deceased’s estate, even though the deceased made no provision or an inadequate provision for them in the Will. Family provision applications may be brought even if the deceased died intestate or without a will.




What does the phrase 'challenging a will' mean?


‘Challenging a will’ refers to challenging the construction, interpretation or the validity of a will made by a person. There are established and well-known reasons for challenging a will which include:

  • Undue influence (rarely successful);
  • Fraud;
  • Forgery; and
  • Lack of mental capacity such as dementia or cognitive deficits.

It is different to a family provision claim and it does not ordinarily involve arguing about whether a person’s share under the will or lack of share under the will is fair or just or adequate for them.




Who can bring a family provision claim?


In NSW, the following are persons who may apply to Court for a family provision order:

  • the spouse of the deceased at the time of death;
  • the de facto partner of the deceased at the time of death;
  • a former spouse of the deceased;
  • a child of the deceased;
  • a grandchild who lived with the deceased or who was dependent upon the deceased at any time;
  • a person who was at any time wholly or partially dependent on the deceased at any time and at any other time was a member of the deceased’s household;
  • any person living in a “close personal relationship” with the deceased at the time of their death.




Is there a time limit to contest a will (or make a family provision claim)?


Yes, but it is different in each State. In New South Wales the time limit is twelve months from the date of death. In Queensland, you have 9 months from the date of death. In Victoria, you have 6 months from the date of death to bring a claim. While extensions can sometimes be sought, it is always advised to seek legal advice as soon as possible. At Dormers we can help you to make sure all time limits are met to give you the best chance of obtaining a positive result and early outcome.





QN : 11-20

How much will it cost to bring a family provision claim?


Depending upon the complexity of the case and the solicitor you choose, the costs can vary from a few thousand dollars in a small estate to a couple of hundred thousand dollars in a large multi-million estate. It just depends – not quite the answer you wanted but call us on 02 9098 5750 and we can talk more specifically with you.




Who pays the legal costs in family provision cases?


It varies slightly in each State. In NSW, in family provision cases, the general rule is the plaintiff’s costs are paid out of the estate if they are successful. However, if you are not successful you may be ordered to pay the estate’s costs.

The Court has a broad discretion to make whatever costs orders the Judge deems fit. In some circumstances the costs paid by the estate or any party can be capped or even fixed by the Court. This is particularly the case if the estate is a small one.

In NSW, an estate which is $500,000 or less is considered to be a small estate and as such at risk of cost capping orders.




Do I need to go to court when bringing a family provision claim?


Generally, yes. However, it depends upon the willingness of the parties to try and resolve their dispute outside of Court. If parties are keen to avoid legal fees from the start, it may be possible to organise an out of court settlement or mediation without actually even starting court proceedings or simply an informal settlement conference to resolve or even narrow the dispute to key issues. It’s up to you.

There are a number of different strategies available to resolve a wills dispute. If you would like more specific advice on the options which may be available to you, please call us on 02 9098 5750.




How long does a family provision case take?


It often depends on the complexity of the case and number of parties involved in the dispute but It is usually about 6 months in NSW and Victoria from the start to a settlement where it is mandatory for parties to attend court ordered mediation shortly after the commencement of Court proceedings. However, if parties cannot resolve their differences and have to run the matter to a full hearing, it can be anywhere from 18 months to 2 years for a court hearing. Some other states may be a little longer.




What does the court consider in determining your family provision claim?


Every State has a different set of factors however the following list is a good guide for all States:

  1. your financial needs and circumstances (both current and future);
  2. your character and conduct;
  3. your relationship with the deceased;
  4. any obligations or responsibilities the deceased owed or had to you or any other beneficiaries or competing claimants;
  5. any financial or non-financial contribution you made to the estate or the deceased’s welfare when they were alive;
  6. the size and nature of estate;
  7. the financial circumstances of any other person living with you;
  8. any disability you may have, whether physical, intellectual or mental and any other applicant or beneficiary;
  9. your age at the time the application is being heard;
  10. any provision or support made by the deceased to you during their lifetime or from the deceased’s estate; and
  11. whether the deceased maintained you, wholly or partly, before his/her death and the extent to and basis on which the deceased did so.




What kind of property falls within an estate in family provision proceedings?


Generally, only assets, money or property that is owned by the deceased at the date of their death falls within their estate. For example, a deceased person at the date of their death does not own their superannuation or any jointly held property. This is because the trustee/s of the superannuation fund usually distribute in accordance with the fund rules and jointly owned property being property held as joint tenants (contrast to a property held as tenants in common) “evaporates” or is extinguished on a person’s death so the whole of the property goes automatically to the other joint tenant. However, it is different in NSW. In this State, the law has a concept of “notional estate.” Notional estate may permit in certain limited circumstances for certain property to be “clawed back” into the deceased’s estate.




What is Notional Estate?


A family provision claimant usually makes a claim for provision out of property owned by the deceased at the time of his or her death. This is called the actual estate of the deceased. In certain limited circumstances, it is also possible to claim provision out of property which was not directly owned by the deceased at the time of their death or has been distributed – this is the notional estate of the deceased.

A notional estate order will only be made if a family provision order would already have been made and the deceased person left no actual estate, the actual estate was insufficient, there are other persons entitled to apply for family provision orders out of the actual estate, or there are special circumstances. Notional estate is a complex law and only applies in NSW.

If you would like more specific advice on notional estate, please get in touch with us at +61 2 9098 5750.




If the deceased leaves a small gift to a family member does that small gift stop that person from making a family provision claim?


In short, no. Leaving a small gift or amount of money to a particular person may not stop that person from bringing a family provision claim. Good try, but it is not that easy and you should seek advice from an experienced will disputes lawyer if you would like to look at structuring your estate. Please call us on 02 9098 5750.




How do you challenge a Will?


If you decide you wish to challenge or contest a Will because the Will is unfair, fraudulent, or undue influence was used on the testator when the Will was drafted, you should contact a solicitor for a consultation as soon as possible as time limits to your claim may apply.

During the consultation, the solicitor will request information from you such as your relationship with the deceased, the circumstances surrounding the drafting of the unfair Will in question, the contents of the unfair Will, and why you consider the Will to be unfair. The solicitor may also ask for additional documentation from you to assist in assessing the type and merits of your claim.




Can you bring a family provision claim if the testator had dementia?


Claims where the testator has dementia usually involve an allegation that the deceased did not have the sufficient mental capacity to make the will, such that the will is invalid. In such a case there would be a challenge in the validity of the will in probate and not a family provision claim.





QN : 21-30

Can probate be challenged?


Yes, probate can be challenged if you are claiming or contesting the validity of a will. This is very different from a family provision application.




Can you bring a family provision claim after 5 years?


Yes it is possible to make a family provision claim after a period of five or even 10 years after death, however, you will need to have approval from the Court to do so. Generally a person must make a claim in NSW within 12 months from the date of death.

To obtain approval from the Court, you must convince the court that there was a special reason for not having made your claim within the relevant time limit and you must show or given a good explanation for your delay. If the estate has already been distributed before you lodge your claim out of time it will be even more difficult to secure the Court’s approval.




Can you bring a family provision claim after probate has been granted?


In short, yes. In NSW probate is required before a family provision order will be made by the Court and generally most family provision claims are brought after probate has been granted or is in the process of being obtained.




Can a beneficiary bring a family provision claim?


Yes, a beneficiary may contest a will and claim further provision than that which is made for him or her in the will.




Can a stepchild bring a family provision claim?


Yes, a stepchild can in certain circumstances bring a family provision claim. A step child is required to demonstrate that the deceased owed them a moral duty and of course the applicant must also show a financial need for provision.




Can a parent contest their child's estate?


Yes, in certain circumstances a parent can bring a family provision claim against their own child's estate. It is not common but it is not uncommon.




Can I bring a family provision claim after the estate has been distributed?


If you have made your family provision claim within the prescribed time limit and your solicitor notified the executor or administrator of the estate of your claim, you will be able to make the claim and seek orders from the court which may need to include orders for a return of distributed assets. It is a poor and risky thing for an executor/administrator to distribute an estate when they are on notice of a claim and generally a responsible executor/administrator would not ordinarily do such a thing. If your family provision claim was lodged outside the time limit and the estate was distributed and then spent by the beneficiaries then it would be very difficult to ‘undo’ the orders made and it is likely that you are not entitled to a family provision order.




How is a family provision claim commenced in NSW?


In NSW a family provision claim is commenced by filing a summons together with an affidavit (or statement) in support of the claim. Your solicitor would then serve the defendant in the proceedings (who is usually the executor or administrator) with the summons and affidavit.

Usually about 21 days after filing the summons, the Court will require your lawyer to attend court for what is known as a directions hearing and at that hearing the judge will normally set a timetable leading to a mediation of the claim.

It is now compulsory in NSW for all matters to be referred to mediation as early as possible. In our experience, over 80% of matters settle at mediation and a formal court hearing is avoided together with a significant saving in legal costs.




Do you need to live in the same State where the deceased lived?


No. The key factor is that the deceased or testor had assets in the State where you are going to commence legal proceedings. Otherwise it’s a bit pointless.




What are the legal costs if my family provision claim is successful?


If your family provision claim is successful, it generally follows that your costs will be paid out of the estate. However, there are circumstrances which may change that ordinary rule which you will need to consider. Please call us and we can explain the position in respect to costs in more detail with you.





QN : 31-40

What are the legal costs if my claim is unsuccessful?


If you are unsuccessful at the final hearing in Court, in most circumstances you will have to pay your own legal costs (unless your solicitor is on a conditional arrangement/ no win no fee engagement) and the legal costs of the estate.




Are all family provision cases required to go to mediation in NSW?


Yes, it is now compulsory for all family provision matters in NSW to go to mediation before the matter is set down for hearing before a judge. Over 80% of matters settle at mediation and do not proceed to a hearing resulting in significant costs savings for parties.




Are most family provision cases settled without the need to go to court?


In NSW approximately 80% of matters are settled without a hearing. This is similar in Victoria and Queensland.




How do I get a copy of the last will of the deceased?


The rules in each State provide that the person who holds a will must provide a copy of the will to certain people if requested to do so. Generally, people entitled to obtain a copy of the will are those who are named in the will or named in a previous will or who are otherwise entitled to bring a family provision claim.




Can I contest the deceased estate if there is no will?


Yes. There is no requirement for the deceased to have made a will before you can bring a family provision claim.




What happens if the will of the deceased is found to be void?


If the deceased person's will is found to be void or invalid, generally the previous will shall be found to be the valid will. If there is no previous will, the rules of intestacy will apply.




Can grandchildren bring a family provision claim?


Yes, grandchildren are entitled to bring a family provision claim in each State. However, there are special rules or additional requirements which must be met by grandchildren. Generally, a grandchild must have lived in the same household as the deceased or been financially dependent on the deceased.

Further, the Court must find that the deceased had a strong moral duty to the grandchild to provide for the grandchild out of his or her estate –so read here – they must have a pretty close relationship during the deceased’s life.




Can adult children of a deceased person bring a family provision claim?


Yes, an adult child of a deceased person is eligible to bring a family provision claim in each State in Australia, however will generally only be successful if they have significantly more financial need compared to other beneficiaries or have some form of disability or ill health which cannot be addressed through the provision made for them in the will.




What’s the difference between a lawyer, a solicitor, and a barrister?


A lawyer is a general term that refers to anyone who practices law. In Australia, there are two types of lawyers – solicitors and barristers. A solicitor deals with the day to day legal issues of their clients. Whilst they can appear in a court, they generally spend their day out of court.

A Barrister is a specialist advocate, meaning they specialise in going to court and are often in court and know the judges. They specialise in litigation, and are the ones who also specialise in wills dispute.




Do I need a barrister and a solicitor?


For litigation, you don’t always need a barrister, but you do need a solicitor. If the matter is going to run to mediation or to a formal hearing, then generally a barrister would be briefed to appear for you. Your solicitor will discuss with you whether (and when) you need to engage a barrister. Often getting a barrister in early can save you time and costs.





QN : 41-50

When would I need the services of a barrister for my will or estate dispute?


Generally, a barrister is involved from the beginning of the matter and gives early advice on how a case should be ran, what options are available to you and possibly some early advice on whether you have a case. Getting them in early can assist significantly and in fact save you money and angst.




How much does this all cost?


Each matter is completely dependent on its own facts, and costs can differ substantially between matters. As a ballpark figure, though, in a family provision application, it could cost $25,000 – $35,000 to get the matter to a mediation. About 80% of matters settle at mediation.

If your matter doesn’t settle, then the next step is usually to go to court for a hearing. Trials are expensive and will cost a lot more but we can advise you of the risks and extent of exposure up front so you know the bottom line.




What are the main issues that most people experience when going through estate dispute?


Litigation is emotionally draining and stressful. Estate litigation usually comes at a time when people are also grieving the loss of a loved one. Feelings of loss, hurt and betrayal can be heightened and many people also do not like having to deal with lawyers and barristers or face the possibility of a costs order which can of itself also be stressful. Dormers understands these issues and will try and make the process as manageable by giving information and advice in a caring, professional and timely manner and as early as possible so you know the bottom line.




How do I write my own will?


Dormers does not recommend anyone writes their own will.




Why should I have a will?


If you don’t have a will then you have no executor and therefore no one is authorised to represent your estate once you die. An application for Letters of Administration can also cost thousands of dollars and there is complexity around the process. The other thing to remember is that someone you don’t even like or know could end up being your Administrator. If you leave a will, then you can say who manages your estate when you die.




But I don’t have any assets, what’s the point in having a will?


These days everyone at least has superannuation so there is some risk that may fall within notional estate in NSW at least. Most super policies also contain life insurance, which can be substantial. This can become part of your estate in some cases.




What is probate?


Probate is a legal process that is sometimes required to validate a deceased person’s will in order for their wishes to be carried out by an executor named in the will. The executor is the person responsible for administering the deceased person’s estate, ensuring debts are paid and remaining assets are distributed.




Do I need Probate (or Letters)?


Depending on the type, size and value of the assets located in New South Wales, it may not be necessary to obtain a grant of probate in New South Wales. There is no statutory requirement to obtain probate in every case. But if property is involved then generally a grant is required. However, if no property is involved then sometimes an estate can be administered without a grant.

However, a lot of asset holders (e.g. banks, nursing homes) won’t hand over the money without a grant. If the estate is involved in litigation then a grant will be required.




If my partner's will is being contested, what options are available to me?


Legal advice will be essential for you in this case. Please contact us here.




Should I engage in any other services whilst going through the process?


You may like to engage counselling, financial assistance and family assistance services. However, this is not essential.





QN : 51-60

Can I dispute a family member’s will when I received less than I expected?


It will depend on the type of challenge. So, if you are accepting the validity of the will but seeking more money, you can contest the will by making a family provision claim. To do this, you must be an eligible person (see Q&A 09).




Is superannuation included in an estate?


Superannuation is not automatically included in an estate. This is because of the concept of notional estate in New South Wales. However, if there are insufficient funds in the estate for example, superannuation may be included.




Can a non-eligible person contest a will?


No. In New South Wales, you must be an eligible person in order to successfully contest a will.




If my challenge is successful, what will be the outcome?


Remember, challenging a will, usually done when the person making the will was under pressure or suffering an illness, is different to contesting a will. If you successfully challenge a will, the will itself would be struck out. This means that the will you challenged will no longer exist and distributions will be done in accordance with the second last will.




If the date of death is uncertain, how much time do I have to file an application to contest a will?


The court will determine a date and time of death in a reasonable fashion. You will then have 12 months from the date of death the court determines to file an application to contest a will in New South Wales.




What happens if I miss the time limit to contest a will?


In NSW, there is a strict time limit of 12 months after the date of death to file an application to contest a will. If you miss this time limit you may still be able to make a claim if an exception applies to your situation.




What do I need when preparing to contest a will?


Any evidence that proves your claim will be helpful. This may include the most recent copy of the will, medical reports, and names of witnesses who can testify to specific details. Further evidence will, most likely, be needed in which you should discuss with your legal representative.




What happens when a beneficiary is silent in a contested will claim?


The court will infer the beneficiary has adequate resources for advancement in life and that the beneficiary does not wish to put forward a competing financial claim.




How can I avoid a family provision claim being sought against my will?


Seek advice from a specialised lawyer who can inform you about how to prevent a family provision claim being brought against your will. A specialised lawyer will also be able to inform you of the people who may have a claim on your estate and what that means for you.




If I am in prison, can I make a contested will claim?


No. However, you can make a contested will claim if leave of the court is granted on application.





QN : 61-70

If I am an ‘eligible person’ does that mean I am automatically entitled to receive a certain proportion of the estate?


No. Certain statutory conditions must be satisfied first in order to alter a deceased’s will. Firstly, you must qualify as an ‘eligible person’ (see Q&A 09). Secondly, the court will determine whether adequate provision of proper maintenance and support was provided to you under the deceased’s will.




If I successfully defend a contested will, do I have to pay the plaintiff’s costs?


No. Generally, a court will not make a successful defendant pay the costs of the unsuccessful plaintiff.




What is a cost capping order?


In will dispute cases, this is where the court may order a specific maximum cost that one party can recover from the other.




Do I truly have testamentary freedom?


You are free to set out your wishes and how you would like your assets to be distributed after death in a will. Such a freedom, however, is not absolute in Australia.




I am the child, but I have a history of separation from the deceased. Will this negatively impact the outcome of my will contest?


The fact that you are an eligible person and that you reasonably need more financial support is not in itself sufficient to successfully contest a will. So, the court will ensure a full investigation into the facts and circumstances of the matter is carried out to determine whether the community would expect the testator to provide, or further provide, for you in their will given your history of separation.




What does the word ‘provision’ mean?


In the context of contesting a will, ‘provision’ refers to the different forms of support and assistance one can provide to another.




How do I get the house outright if I am the spouse of the deceased left with only a right of residence?


There is no set rule. However, it is generally considered the duty of the testator to ensure their spouse is provided with an appropriate place to live after their death. A right of residence is usually considered an unsatisfactory way of providing accommodation to a spouse. This is because the spouse may need to leave the residence, for example due to sickness, and then the spouse will also be left without any protection.




What is testamentary capacity?


In order for a will to be valid, the will-maker must have testamentary capacity. This means that the will-maker must:

  1. understand the nature of making a will and the effect of making a will
  2. understand, at least in general terms, the nature and extent of the property of which they are disposing
  3. be aware of those who might be though to have a claim upon their testamentary bounty
  4. have the ability to evaluate and discrimination between the respective strengths of the claims of such persons




If I am in a homosexual relationship and was left nothing in the will, can I successfully contest the will?


If the only dependency that was shared in your relationship was that of an emotional dependency, then the court will reject your submission. This is because dependency cannot be based solely on the existence of an emotional relationship.




What type of claim do I choose from when I want to contest a will?


The four main types of claim you can choose from are:

  1. Family provision claim

    This most common type of claim that you can choose from. It is where you believe you should receive more financial support from the deceased’s estate than what you actually received. To be successful in a family provision claim, you will need demonstrate how the Will fails to provide for your proper maintenance, education and advancement in life.

  2. Lack of capacity

    Where you were a beneficiary on the Will, but you were later removed as the will-maker changed their will, you can argue that the deceased did not have the requisite testamentary capacity to make such a change.

  3. Undue influence

    This is where you can argue that the will-maker was under pressure by a person to make and sign a Will that is not in line with their wishes.

  4. Breach of trust

    You can argue there was a breach of trust if you are the beneficiary of a Will and you believe the executor is failing to correctly carry out the written wishes of the deceased.





QN : 71-80

What does proper maintenance, education and advancement in life mean?


These terms are not defined, however they have been determined in previous cases and are ultimately left to the courts’ discretion and the facts presented to support the claim.

Maintenance refers to the needs of person that cannot be met from their own resources. Such needs include things like mortgage repayments, household bills, medical bills and supporting any dependents.

Education refers to necessary schooling and, where feasible, further tertiary education that parents are expected to provide to their children.

Advancement in life is an expression that can extend beyond an applicant’s younger years and beyond the necessities of life.




Does a widow, who is also the beneficiary defending a contested will, need to prove they are entitled to receive the assets of the estate?


No. The onus is instead on the plaintiff to prove that provision for the proper maintenance, education and advancement in life is not available under the will.




Can I challenge a will if I believe it was forged?


Yes. The onus of proving fraud will fall on you, the person alleging the fraud. You will need evidence to back-up your claim.




What do I do if my contested will claim fails?


You can appeal the decision by way of a rehearing. This does not involve the Court of Appeal completely re-considering the matter. Instead, the court will look at the decision that you are appealing.




If a person writes a suicide note before they commit suicide, will that note be considered a valid will?


Most likely yes. Just because a document is considered a suicide note does not mean it cannot also be considered as the deceased’s will. The court will consider several factors in order to conclude the deceased did intend for the suicide note to be their will. For example, the court will look to whether dispositive language was used on the note, such as “I wish to give you all my belongings”, whether the making of the document was on a solemn occasion and whether the deceased took steps to ensure the note would be noticed by other people.




How will the court determine how dependent I was on the deceased?


The court will examine the whole relationship between you and the deceased. This examination will particularly focus on a consideration of past events and future probabilities.




Can I contest a will if I have a criminal record?


Yes. Having a criminal record will not prevent you from making a claim.




What is the courts role?


In a disputed will case, the court’s role is to simply make adequate provision in all circumstances for the proper maintenance, education and advancement of life for the applicant. The court’s role is not to achieve a fair disposition of the deceased’s assets.




Can I challenge a will if I believe there was undue influence?


Yes. If you believe that is the case, the onus will fall on you to prove to the court that the will was indeed made under undue influence. However, challenging a will on such a ground is difficult to prove to the court.




Can I expect all my siblings will be treated equally in our parents will?


No. The deceased has no obligation to treat all their children equally in their will.





QN : 81-89

What is the main piece of legislation relating to wills in NSW?


The Succession Act 2006 (NSW).




What is the difference between a solicitor and a barrister?


A solicitor and barrister are both lawyers, but they have different roles to play. A solicitor is the person who speaks directly to the client. They provide legal advice, find legal solutions, and prepare legal documentation. Barristers are called upon by the solicitor when the matter at hand is going to trial. The barrister is the person who will represent you in court and prepare the matter for trial.




What are mutual wills?


Mutual wills can also be called mutual will contracts. Mutual wills form a legally binding contract between two people. It involves two wills being drafted in terms that both parties agree to, and it prohibits either party from revoking or amending their will unless the other party agrees. As a result, when one person dies, both wills can no longer be amended.




What is the difference between a “normal” will and mutual wills?


Usually, normal wills are revocable. That means it can be cancelled and you can make a new one. However, mutual wills can only be revoked while both parties are still alive, have capacity and when there is agreement between the parties. Therefore, mutual wills contain an express or implied agreement not to revoke the will after the death or incapacity of either party.




What is an example of a mutual will?


An example may be where a couple makes an agreement that when the surviving partner dies their property will go to a specified beneficiary. Another example may only deal with the will of one of the parties. For example, when a housekeeper agrees to work for free on the basis that their employer will leave the house and contents to them.




When would I be involved in a mutual will?


A common scenario is when you wish to gift your estate to your surviving spouse to ensure your wealth passes on to your children when your surviving spouse dies. A mutual will would ensure that when you die, your surviving spouse cannot amend or revoke the will. This means your children will become the “ultimate beneficiaries” of your estate.

In another case, you may wish to gift your estate directly to your children without gifting anything to your surviving spouse. In such a case, a mutual will could prevent your surviving spouse from making a family provision claim against your estate.




Are mutual wills confined to husbands and wives?


No. Mutual wills can be made between any two people who wish to bind each other to an estate plan.




What happens if one party breaches the mutual will?


If your surviving spouse breaches the mutual will, you can reply on the mutual wills contract to obtain some type of compensation.




Can you give me an example of how a mutual will would work?


Imagine Clare and John are married. They each have a daughter from a previous marriage. They make wills to agree to leave their assets to each other. In such wills, they agree the estate of the surviving spouse would be equally divided between Clare’s daughter and John’s daughter. John dies a few years later and his estate passes to Clare. At the time of John’s death, Clare’s estate is held on a constructive trust. (Constructive trust is an arrangement where a person holds property as the owner for the benefit of at least one beneficiary). This means that Clare must deal with the assets in the estate in the way that was outlined in the mutual will.




What is the first thing you should do when a relative dies and you think you may be in the will?


We recommend you take the following steps:

  1. Ask someone close to the deceased whether the deceased left a will;

  2. If the deceased left a will, ask for a copy of it;

  3. If they refuse to give you a copy of the will, ask who the executor is;

  4. If they tell you the executor, you can ask them for a copy of the will or whether you are in it;

  5. If they refuse to tell you the executor, call us and we will assist.





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