How long does it usually take to contest a Will? If the outcome is favourable for the contesting party then what happens? Is this something that takes months or years?
The first important thing to know about contesting a Will in New South Wales is that, you have a set period of time in which to make your family provision claim to the Court. Under the Succession Act (“the Act”) an application for a family provision claim must be made no later than twelve months after the date of the death of the deceased.
To make a family provision claim outside of this twelve month period will require you to show sufficient cause for the application to proceed despite the delay.
Once a family provision claim is made the parties, which usually means you and the Executor of the Estate, have an obligation under the Act to attend mediation. This is for the purpose of encouraging the parties to settle the dispute without the need for the matter to go to a Court hearing. A large number of family provision claims are resolved at mediation. If the matter is resolved at mediation a Consent Order will be signed by the parties and filed in the Court. In terms of when the settlement monies will be paid it will depend on what has been agreed between the parties during the mediation. Where the settlement requires the sale of real estate this period may be longer than if the settlement requires the release of funds in the Estate’s bank account.
If the family provision claim doesn’t settle at mediation than it will be given a date for hearing in front of a Judge. The length of the hearing will depend on the number of witnesses being called to give evidence as well as the complexity of the case. Giving a time estimate on how long it will take to contest a Will is difficult as each case varies considerably but generally plan for six to twelve months after the lodgment of the family provision claim allowing time for mediation in between.
If the outcome for the family provision claim is successful the Court will generally make an order that the monies be paid out of the Estate of the deceased within twenty eight days, otherwise interest on the monies will start to accrue. The orders may be different where the monies are to be obtained by the sale of real estate or by the conveyance of real estate from the Estate to the family provision claim applicant.
If you believe that you have a family provision claim against the Estate of a loved one you need to seek urgent legal advice from an expert Wills and Estates lawyer.
Graeme Heckenberg is an expert Wills and Estate lawyer. If you are living on the Northern Beaches and surrounding Peninsula and need help and advice in a Will dispute or Estate matter, call Northern Beaches Lawyer today for an appointment close to home on 9221 0341 – City Experience By the Beach.