Writing a valid last will and testament is the primary way for a person to ensure their possessions are dispersed in accordance with their wishes after they die. If someone in your family has recently passed away, you may be named as a beneficiary in their will.
While dealing with the aftermath of a loss is a difficult and emotional time, you should be aware of the legal rights you have as the beneficiary of a deceased person under the relevant NSW law, the Succession Act 2006. An understanding of the legal picture around wills and succession will help you deal with the process of claiming what your late relative has willed you.
The following are a few of the stipulations regarding wills in NSW:
You must be informed of the will’s existence
The executor of a deceased estate has a number of duties that must follow the date of death. The first of these is determining whether the individual left a will and, if so, advising the beneficiaries named in the document. Once the executor has made contact with the people named in the will, they explain how much each person stands to inherit and when they should expect to collect.
You may request a copy of the will
Wills are public documents stored by the Supreme Court of NSW and there are a variety of parties enabled to either view or obtain copies of wills that pertain to them. If you are named as a beneficiary in the latest version of the will, or if you were named as such in a previous version, you may make this request. Close family members and those who may have a claim against the estate are also entitled to receive a copy, even if they have not been named. This request may come with administrative costs. You should also note that once the will has received a grant of probate, it is in the public record and may be requested by anyone who pays the fee.
You should receive your share of the inheritance within a year
While it takes time to finalise the disposition of an estate, the process is designed to be completed within a year or so. The NSW Trustee & Guardian explains that even in simple cases, there is a minimum of six months needed to finalise an estate, and that the normal length of a case is between nine months and a year. With that said, unless an issue occurs such as a delay in selling assets, a tax matter or a challenge to the will, you should not be waiting more than 12 months for the resolution.
You must be told if the will is contested
Disputes of an inheritance can arise for a number of reasons. When people believe they are entitled to a larger share of an estate than they have been willed, they may bring the matter before the court. Since a successful challenge may change the process of distributing the estate, the existing beneficiaries must be notified of such an attempt.
There are several reasons why a will may be contested. For example, if there were procedural problems with the creation of the will, such as a lack of signature or failure to have witnesses present at the signing. Suspicion of undue influence or dissatisfaction with the clarity of the will are also reasons for potential challenges, as well as allegations that a close family member has not received adequate compensation.
You have the right to contest the will
If you have been named the beneficiary of a deceased person, this does not mean you lose the ability to bring a challenge yourself. If you read the will and something doesn’t seem right about the way the estate has been distributed or about the validity of the document, you are allowed to bring a challenge.
If you have an issue with the way the document has been prepared, believe the language is ambiguous and being interpreted incorrectly, or maintain that you have been inadequately compensated, you may contest the will.
Claims made under the family provision of the Succession Act 2006 don’t have to come from spouses and children only, as NSW Trustee & Guardian notes. Rather, former spouses, de facto partners and other dependents also have a right to bring a challenge. Overall, it’s important to note that, in NSW, the right to contest a will is 12 months.
You can work with an expert legal professional for complex cases
When a dispute occurs around a will, whether you are the one making the challenge or an existing beneficiary whose share is being contested, the process can become complicated and lengthy compared to the normal finalisation of an estate.
Gerard Malouf & Partners Will Dispute Lawyers have decades of experience handling family provision claims and inheritance issues. For relevant legal advice that can help you secure what you are owed, contact our expert team on 1800 004 878 or email your enquiry.
