Following the death of a loved one, the time for mourning is shared with the process of finalising their estate. During this time, the deceased’s assets will be distributed in accordance with the terms of their Will.

After the distribution of assets, a person may feel they have not been adequately provided for in the deceased’s Will. In this case, a Family Provision Claim can be filed to request for a greater share of the inheritance. Alternatively, if there are suspicions that the deceased’s Will is invalid, a person may challenge the Will by filing a Probate Caveat.

To avoid legal complications in the distribution of an estate, it is important to understand the intricacies of an inheritance dispute.

What is a Family Provision Claim?

If an eligible person believes they have been unfairly left out the deceased’s Will, or deserve a larger portion of the estate, a Family Provision Claim can be filed with the Supreme Court of NSW (‘the Court’). If this application is successful, the Court will grant the applicant with a share, or greater share, of the deceased’s estate.

Before an application is considered however, the Court must first refer all applications to mediation.

How can mediation resolve my inheritance dispute?

Under section 98(2) of the Succession Act 2006 (NSW) (‘Succession Act’), the Court must refer all Family Provision Claim applications to mediation as the first step in resolving an inheritance dispute.

Mediation offers an opportunity for disputing parties to reach an agreement on an estate’s distribution outside of the Court. The parties in a mediation are usually the applicant contesting the Will and the executor or primary beneficiary as the defendant. Anyone who is directly affected by the decision of the mediation (i.e. other beneficiaries to the Will) are also entitled to attend.

Both parties are entitled to legal representation and an accredited mediator to conduct the negotiation.

Mediation is cost-friendly and provides a confidential space to resolve inheritance disputes. Unlike a Court order, mediation allows for a custom solution that is suitable to each parties’ needs and interests.       

What if the mediation is unsuccessful?

If the mediation is unsuccessful, the Family Provision Claim will be considered by the Court.

Before making an order, the Court considers a range of factors set out under section 60 of the Succession Act. These factors include the relationship between the applicant and deceased, any obligations owed between them, the nature and size of the estate and the current financial situation of the applicant.

An order for Family Provision will be made if the Court is satisfied that the applicant deserves a share, or greater share, of the deceased’s estate. This order will alter the provision of the estate and ensure the applicant receives the appropriate inheritance. It is important to note that these orders may affect the inheritances of other beneficiaries.

What if I want to challenge a Will?

If a person challenges a Will, they are claiming the Will itself is invalid. A Will’s validity may be disputed on the grounds of undue influence, forgery, a lack of testamentary capacity, or improper execution.

A concerned party can challenge a Will by lodging a Probate Caveat with the Court within 6 months of the death of the deceased. For more information about probate caveats, we recommend reading our blog Contesting a Grant of Probate.

If the deceased does not have a Will, then they are considered to have died ‘intestate’ (without a Will). An eligible person may still challenge the deceased’s estate in the same process as if they had a Will.

Can I defend an invalid Will?

In specific circumstances, it may be possible to defend an invalid Will and maintain its provisions.

Section 27 of the Succession Act permits the Court to rectify a Will if a clerical error was made or the Will does not convey the deceased’s instructions.

Section 32 of the Succession Act permits the use of extrinsic evidence when interpreting an ambiguous Will. The Court may uphold a Will if evidence is provided that clarifies the intentions of the deceased. In doing so, the inheritances under the Will are protected from alterations to the estate’s distribution.

To learn more about challenging a Will, please refer to our free Guide to Family Provision Claims – Challenging A Will or read Paul Etherington’s interview with the Daily Telegraph about the intricacies of inheritance disputes.

Contact Us

If you are a beneficiary or executor to a Will that is being challenged or under a Family Provision Claim, we recommend seeking professional advice.

If you would like to discuss your inheritance dispute matter, please contact Etheringtons Solicitors on (02) 9963 9800 or via our online contact form.