Inheritance rules in New South Wales are complex, and if you want to navigate these rules, you may run into trouble without the help of a lawyer. The decision to contest or challenge a will is a big one – the process can be time-consuming, stressful, and expensive. There could be unintended consequences if you move forward without a clear understanding of the rules surrounding wills and estates. So, it’s worth speaking to a lawyer before you enter a will dispute.
NSW Inheritance Laws
The Succession Act 2006 legislates inheritance laws. This determines how a deceased estate is distributed, whether there’s a will or it’s a case of intestacy. It also covers family provision claims and how to administrate the estate. It provides a clear framework to ensure assets are distributed fairly.
The Succession Act 2006 (NSW) outlines what is required to write a valid will. It also established how to deal with cases of intestacy when someone dies without a will. The allowance for family provision claims allows certain family members to challenge a will with the deceased estate lawyers. The process requires the services of estate litigation lawyers with experience with contesting a will if you feel you haven’t been adequately provided for in the will.
Challenging a will is different; it is covered by the act, and is when you don’t believe a will is valid. Either due to someone’s mental capacity or if you believe it is invalid.
You should always seek legal advice because laws change, and will and estate lawyers stay abreast of all the relevant changes to provide accurate advice. In Queensland, several proposed changes to the Succession Act have been suggested, including limiting contesting a will to estates worth more than $250,000. Ultimately, the best way to avoid will estate disputes is to hire experienced lawyers to write your will and communicate your desires to your family.
Intestate Succession in NSW
If someone passes away without a valid will in place, intestacy rules take precedence, which means the closest family members are in line to inherit the estate.
The entire estate is distributed to the spouse if there are no children, but if the deceased has children, the assets are divided between the children and the spouse.
If there is no spouse or children, then the parents and siblings are prioritized. Distant relatives may be in line if there is no spouse, children, parents, or siblings. If the deceased has no living relatives and no will, then the state government is usually the beneficiary.
Intestacy often results in challenges when it comes to asset distribution. This is particularly common when families are blended or the rules of intestacy don’t address the family’s needs adequately. The best way to avoid these situations is to contact a lawyer to have a valid will drawn up. That way, you can appoint an executor and communicate your wishes to your family.
Intestacy doesn’t just delay the process; it can be emotionally stressful for family members and create additional costs.
Testamentary Capacity and Valid Wills
Legal requirements dictate what is necessary to create a valid will. The testator, the person creating the will, must be of sound mind and have the mental capacity to create the will.
This means:
- Understanding the assets
- How they will be distributed
- Who has a claim to the estate
- How everyone involved will be impacted by the decisions within the will
There cannot be coercion or undue influence in the will creation process, and the testator must be creating a will voluntarily. Wills must be written, signed and witnessed – at least two witnesses must sign the will, and these cannot be a beneficiary or a spouse of a beneficiary.
You should update your will every time you experience a life change, from marriage and divorce to the arrival of children. These changes impact the beneficiaries, so your will needs to reflect that.
The best way to ensure your will is valid and detailed enough to avoid disputes is to sit down with an experienced will and estate lawyer who can guide you through the process.
Family Provision Claims
Family Provision Claims within the Succession Act 2006 (NSW) allows certain family members to contest or challenge a will. It details who is eligible to make such a claim, including a spouse, de facto partner, children, siblings, parents, and dependents.
There are various factors to consider when someone launches a family provision claim. The court will consider the claimant’s relationship to the deceased, financial needs, and whether the deceased had an obligation to provide more in their will for the claimant.
Executors should be aware of the potential for these claims and understand who is eligible and likely to do so. Executors should also seek legal advice early on to ensure they are fulfilling their obligations to the deceased. For any party, documentation is crucial, as accurate communication and financial records will help settle the dispute quickly.
Final Thoughts
With many governments seeking to overhaul inheritance rules and the existing legislation being so complex, you should rely on the expertise of a reputable lawyer who can offer guidance on how to handle your delicate situation. The decision to contest a will can have far-reaching effects, so it’s important to be well informed before you make the decision.
AJB Stevens has experience handling will disputes, and if you believe you have been unfairly left out or inadequately provided for, we can help you contest a will. We can help you challenge an invalid will, resolve a will dispute, contest a will, and contest without a will! Every case is different, and we’re prepared to provide you with the legal advice and emotional support to resolve yours as quickly and efficiently as possible.
