Contesting Wills

How To Feel Okay About Contesting A Will

By LHD Lawyers

People often speak about the five stages of grief: denial, anger, bargaining, depression and acceptance.

But did you know that the original author of this theory, Elisabeth Kübler-Ross, formulated these stages to inform those who are coming to terms with their own death?

These days, people often refer to the five stages of grief as the process that a person grieving for a family member or close friend may experience. We know that grieving for a loved one is a highly individualised process and for some, it takes years rather than weeks or months to fully recover.

Adding conflict over a will to the mix of post-death emotions is not ideal but often inevitable. If you are feeling as though you or your family have not been adequately provided for, it’s important to speak up.

Why to feel okay speaking up about a Will

It’s easy for guilt to manifest when you are in this one-of-a-kind emotional state but here are some reasons why it’s okay to contest a will.

It’s highly likely that, if you fit into the category of eligible persons (see below) to contest a will, that you made a real impact on the deceased’s life. Although contesting a will is not aimed at compensation, a successful claim can be a recognition of the value you contributed to your loved one’s life.

Often a will and the probate process may not give full legal effect to what you knew to be your loved one’s wishes. Don’t let a technicality mean you or your family miss out.

Will a provision from the deceased’s estate make a positive difference to your life or that of your family’s?

When deciding if an eligible person can contest a will, the court considers how that person’s education or advancement in life would be properly provided for. This is measured against their situation as at the date of the hearing, not at the date of the deceased’s passing.

Eligible persons (for a Family Provisions claim under the Succession Act 2006 (NSW)

The following persons are described as an “eligible person” to make a claim under the Family Provision Chapter of the Act:

  • Wife or husband at the time of death
  • De facto partner at the time of death
  • Former wife or husband
  • Child
  • A person who was a member of the same household at any time and was wholly or party dependent on the deceased at any time
  • A grandchild who was wholly or partly dependent on the deceased at any time
  • A person with whom the deceased was living in a close personal relationship at the time of death (excluding paid carers)

Although it may be difficult to consider, if you are feeling unfairly treated by a loved one’s will, it’s important that you do not let those feelings simmer for too long without taking any action. The law in NSW only allows claims under the ‘Family Provision’ Chapter of the Act to be brought to the court within one year of your loved one’s death.

Contact us today or call 1800 838 481 to arrange a consultation.

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