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Disputing A Will – Your Chances of Success

If you are considering disputing a Will, it is important to obtain expert legal advice on your chances of success, prior to lodging a dispute with the Court.

This consideration is extremely important as the consequences of commencing court proceedings without merit, can lead to you being liable to pay the other party’s legal costs for defending the dispute, as well as your own legal costs.

As well as the financial implications in challenging a Will, it is important to consider the stress of court proceedings, a stress that has been recognised by Australian and other Courts. This stress can be quite onerous in Will disputes, which require all the parties to have their personal lives and finances discussed in a public courtroom.

In the recent decision by the New South Wales Supreme Court of Sung v Malaxo [2015] NSWSC 186, a family provision claim was made by a de facto partner of the deceased. The deceased had divided his Estate with one third to his de facto partner and two thirds to his daughter. The deceased’s daughter had little income, little assets and did not own her own home. In contrast, the deceased’s de facto partner owned real estate, had a salary of $95,000 per year, superannuation of over $230,000 and had recently received $180,000 from her father’s Estate.

The Court found that it would be contrary to law to grant the deceased’s de facto a larger share of the deceased’s Estate, as it would operate to the serious disadvantage of the deceased’s daughter.

The Court dismissed the proceedings by the deceased’s de facto partner but that was not the end of legal action in the matter. In Sung v Malaxo [No 2] NSWSC 290 the question of who was to pay the de facto’s legal costs for the dispute were dealt with.

The deceased’s de facto partner had spent in excess of $100,000 in legal fees and expenses in challenging the Will, which she sought to recover from the deceased’s Estate.

The Court evaluated the four offers of settlement made to the deceased’s de facto partner prior to the court proceedings. The Court considered each offer of settlement to be reasonable and commented that had the deceased’s de facto accepted any of the offers of settlement, she would have been in a better financial position than she was after the court proceedings.

The Court found that the deceased’s de facto acted unreasonably in commencing and continuing with the proceedings, especially after receiving the offers of settlement. In addition, she exposed the deceased’s daughter to the rigours and strains of court, when there was never any merit in her challenge to the deceased’s Will.

The Court ordered that the deceased’s de facto pay her own costs as well as a portion of the costs to the Estate in challenging the deceased’s Will.

Graeme Heckenberg is an expert Wills & Estates lawyer, who’s Northern Beaches Offices are located in Avalon. He will be able to guide you and advise you in the event that you wish to Challenge a Will.

Call today for a an appointment closer to home on 9221 0341

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