Preventing a Will Contest: Transferring Property Prior to Death

It is common for testators to transfer property or assets to their intended beneficiaries prior to their death, in an effort to avoid any potential challenges to their will. The logic being that an applicant will be unable to challenge the will where the estate has no real value. However, in NSW transferring your assets before your death will not necessarily prevent a family provision claim from being made against your estate and in particular circumstances the court may make a Notional Estate Order.

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Does the Outcome of the Case Affect the Costs?

The costs of contesting a will in family provision are generally paid out of the estate, particularly where an applicant is successful. However, the outcome of the case can affect the costs order which the court sees fit to make, consequently, particularly in cases where the applicant is unsuccessful, the costs will not necessarily be paid out of the estate. The following cases provide an example of the range of costs orders which may be made in cases where the applicant is unsuccessful, demonstrating that the orders made will vary depending on the circumstances of the case.

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