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NSW Does Uncle Have Grounds to Contest Will?

Discussion in 'Wills and Estate Planning Law Forum' started by Abigail92, 12 August 2016.

  1. Abigail92

    Abigail92 Member

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    My uncle passed away about a month ago. My mother (his sister) was the executor of will of the estate and the main beneficiary (unknown to her until his death). The other beneficiaries are charities. He had no children or wife/de facto/girlfriend. He, however, has an estranged brother.

    The brother was notified of his death and immediately demanded a copy of the will, upon discovering he was left nothing (no surprise to me because I knew how much they disliked each other), he has threatened to contest the will and hired a solicitor.

    I just want to know if he has any grounds to contest it on? Also if having lived (but not at the time of death) with my uncle and having first-hand knowledge of the estrangement, is there anything I can do personally to hurt his brother's case?

    Also, it was suggested I also contest the will because we lived together for 6 years. I had no intention of contesting a will because I respect his wishes and honestly thought they were fair. However, I'm genuinely concerned about his brother contesting it and winning, especially since I know my uncle did not want anything going to his brother. If his brother does contest it, would it be worthwhile or even possible for me to contest it to limit what he could receive?

    While it sounds vindictive, I really don't want anything of my uncle's but I feel like I should be trying to honour what he wanted.

    There's is a previous will from 15 years ago that also states my mother is the beneficiary and the brother was left nothing. I don't know if that is relevant
     
  2. bluetongue

    bluetongue Well-Known Member

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    In what state did your uncle pass away and in what state are his significant assets? In which state is probate being applied for?
     
  3. Abigail92

    Abigail92 Member

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    All in New South Wales
     
  4. bluetongue

    bluetongue Well-Known Member

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    Your uncle's brother will attempt to claim using the family provision option of the Succession Act. His link to the deceased sounds tenuous at best and he will prepare an affidavit under the instructions of his solicitor that will state his claim. To counteract your uncle's brother's claim, you will prepare an affidavit in response to your uncle's brother's affidavit, as will your mother as executor.

    If your uncle supported you financially when you lived in his house, you can also make a family provision claim, and your mother as executor can decide how to defend the estate against your claim.

    The previous will is of relevance as it shows that your uncle's intentions had not changed.

    Your uncle's brother usually has 12 months from death to make a claim and in that time, your mother should not distribute the estate as it may be clawed back later on if there is a successful claim on the estate.

    It's now a waiting game to see what claim will be made once probate is granted to your mother.
    If litigation commences, your mother should seek legal assistance.
     
  5. Matthew Lynch

    Matthew Lynch Lawyer

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    Hi Abigail

    Siblings cannot make claims on estates in NSW.
     

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