Segelov Taylor Lawyers specialises in acting in estate litigation and family provision claims in New South Wales for executors, claimants and others effected.
Arrange a free initial one hour case assessment by phone, Zoom or in person.
The Succession Act 2006 (NSW) allows an eligible person to contest a will where they have been left out of the will or not adequately provided for.
The Act defines an eligible person as:
To be successful in a claim you must be an eligible person and be able to satisfy a court that you have not received adequate provision for your proper maintenance, education or advancement of life in the deceased’s will. Each case will be determined on its facts. A court will, in determining the matter, consider the following:
The above list is not exhaustive, and the court is able to consider any other matters it considers relevant to the determination of the claim.
Most claims resolve at mediation. If a claim settles at mediation, it generally takes between three to six months from the filing of the Summons to completion.
If a claim does not settle at mediation it will take longer. If the matter proceeds to hearing, then it normally takes between 12 to 18 months to finalise.
As the executor, you have a duty to defend the estate and to attempt to uphold the terms of the will. However, the executor must act reasonably and seek to negotiate and compromise a claim where necessary.
This is particularly so if the estate is relatively small and the cost of defending the proceedings would greatly diminish the value of the estate.
The executor will be named as the defendant in a family provisions claim and will be required to file Affidavit evidence detailing the assets, liabilities and value of the estate, the financial and other circumstances of the beneficiaries and reply to evidence that has been filed by the claimant.
A challenge may be made to a will on the basis the will was not executed properly, the deceased lacked testamentary capacity, or the deceased was subject to undue influence.
Testamentary Capacity
A person making a will must have testamentary capacity. This means they must be of sound mind, memory and have understanding at the time of making the will. A person is regarded as having the required capacity if they:
Undue Influence
A will can also be challenged if there is a suggestion that the person who assisted the maker to draw up the will stands to gain from the will. A court will however only overturn a will on the grounds of undue influence where it is satisfied the will maker’s mind was coerced to such an extent that the resulting will was contrary to the will maker’s real intentions. This is extremely difficult to prove.
Segelov Taylor acts on a ‘no win no fee’ basis for individuals in approved family provision claims. This means if you are not successful you will not be charged for our costs incurred in litigating the claim. You will not be charged any monies up front. We will pay all the disbursements (monies paid out by us for such things as court fees and mediator’s fees). We will not be paid for our work until the successful completion of your matter. Our fees our determined by an hourly rate plus disbursements. We do not charge a percentage of the amount recovered.
If you are not successful in your claim you may be ordered to pay the executor’s costs. It is therefore important you seek legal advice as to the merits of any claim before commencing proceedings.
When we act for an executor, the costs are normal paid, on an indemnity basis from the estate.
In certain circumstances Segelov Taylor will act on a ‘no win no fee’ basis in challenging a will.
Please contact our office and we will provide you with a free assessment of your case We will in all circumstances provide a full costs disclosure and will discuss the costs arrangements prior to commencing work.
Please email, or call us on 02 8880 0500 to discuss what assistance we can provide.
