Will disputes are a sensitive matter. Ideally, their outcome is a fair distribution of the deceased’s estate. Through gathering the right information and with the help of an experienced estate lawyer, such outcomes are made possible. This article will highlight the differences between disputing a will in Australia’s states and territories, the ground on which you can contest a will and how to prepare.
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Grounds for contesting a will
Each Australian jurisdiction has specific grounds for contesting wills. To establish a solid basis for contesting, and in turn be deemed an ‘eligible person,’ the claimant generally must demonstrate that the deceased was subjected to undue influence, threats, constraints, or coercion when creating their will.
New South Wales
In NSW, you can file a family provision claim under the following circumstances:
- The deceased must have also been a NSW resident and owned property and/or land within the state.
- The deceased’s will is deemed incomplete, invalid, signed under suspicious activity or when the person was not in the right mental capacity to write the will for it to be contested.
- You have evidence of the deceased’s intent on providing for you. These may include statements, text messages, or letters. The courts will look at similar circumstances such as your relationship with the deceased as well as the physical, psychological and financial need for additional provision from the estate.
Victoria
A claim in VIC is known as a Testators Family Maintenance Claim (TFM). You may contest a will if these three circumstances are true:
- You are an eligible person.
- You have evidence that proves you’ve been left without adequate provision.
- The will is valid.
- The deceased must have been a Victorian citizen, passed away in Victoria and owned real estate and property within the state from the date of their birth for you to file a claim within the state.
Queensland
The courts in QLD will typically avoid interfering with the will of a deceased person and have imposed laws and regulations around making a claim. In QLD, you will file with a Family Provision Application. If you file for inadequate provision, the courts will look at:
- How much you’ve received thus far from the estate.
- Your health and income-earning capacity.
- The size of the estate.
- Contributions you may have made to the estate.
- Your financial situation.
- Your relationship with the deceased.
Who can contest a will?
In order to become an eligible person to dispute a will, the person challenging the will must also meet the eligibility criteria set by the relevant state legislation.
- New South Wales: Spouse, children, dependent parents, dependent siblings, grandchildren (if they were financially dependent on the deceased) and de facto spouse (if they had a relationship of at least 2 years and were living together at the time of the deceased’s death).
- Victoria: Spouse, children, dependent parents, dependent siblings, grandchildren (if they were financially dependent on the deceased), de facto spouse (if they had a relationship of at least 2 years and were living together at the time of the deceased’s death) and stepchildren (if they were financially dependent on the deceased).
- Queensland: Spouse, children, dependent parents, dependent siblings and grandchildren (if they were financially dependent on the deceased).
While the person may have the eligibility to contest, it doesn’t mean that they are necessarily entitled to any of the estate. You would have to prove rights to the property that you two jointly owned during the marriage, or any agreements you may have made.
It could be possible to challenge the will of a birth parent. If the child was, at any time, wholly or partly dependent on the birth parent.
Parents can cut children and stepchildren out of their will – or exclude grandchildren, nieces and nephews – but this doesn’t always mean these individuals are comprehensively barred from receiving some of those decedents’ inheritance. Read More.
Both nieces and nephews aren’t automatically eligible to contest the will of an aunt or uncle. In order to become an eligible person, you may have to prove dependency based on their relationship with the deceased. Read our Case Summary on how one niece secured $70k from her Aunt’s estate.
Courts will scrutinise your relationship with the deceased if you want to contest their will, and part of your eligibility is proof that you were dependent on them financially. Read More.
The legal process for contesting wills
Beyond the strain that disputes and a family provision application can cause within families, the complexity and nuance of the legal process can add an additional layer of unease. Your lawyer will help alleviate some of the burden by taking you step by step through the process, providing expert legal advice at each stage.
Here’s what you should know prior to filing a dispute.
Time limits for filing a will dispute
The timeframe in which you can file a dispute differs state by state, which is as follows.
New South Wales: In NSW and the ACT, claimants have 12 months from the date of the testator’s passing to file a claim.
Victoria: Claimants have a timeframe of six months from the probation grant or three months after notifying the estate executor to file a claim. The Supreme Court may consider granting extensions if there are legitimate reasons for the delay.
Queensland: Claimants must inform the executor — the person responsible for managing the estate of the deceased person — of their intention to contest the will within six months of the death of the person who made the will (testator). The claim itself must be submitted within nine months after the testator’s passing.
Western Australia: 6 months after probate.
Northern Territory: 12 months from the date of probate.
Tasmania: 3 months to lodge a claim with the court after probate.
If for some reason you cannot file a claim within the time limits, speak with your lawyer. There are exceptions to the statutes of limitations but the decision is at the discretion of the court.
The legal process
Although the process of disputing a will may differ depending on the claimant’s state, there are commonalities across all Australian jurisdictions within the legal process of filing the claim:
- The claimant and other relevant parties engage in negotiations with the aim of achieving a resolution.
- If the parties agree, they will create a formal document that outlines the consensus.
- If a resolution is not reached, evidence supporting the claim will be outlined in an affidavit and a summons will be filed with the courts.
- A meditation is initiated, where the executor and other parties involved are provided the opportunity to discuss the case and explore potential solutions under the guidance of a neutral mediator.
- If the dispute remains unresolved following mediation, the case will proceed to litigation where it is brought before a judge.
- The judge will then determine based on the evidence provided whether or not the claimant is entitled to the desired outcome or compensation.
If the agreement is reached during either the negotiation or settlement phase, the changes to the will still need to be approved by a judge.
What to expect during mediation
The role of the mediator is not only to help the parties involved reach a consensus, but to aid in navigating the conversation to where family members remain cordially.
During mediation, a mediator typically will request that each individual shares their understanding of the dispute without interruption, allowing everyone to hear and understand each side’s perspective. After each member has been given the opportunity to speak, the process of seeking a compromise commences.
It’s common for a will dispute to reach the mediation phase after approximately 6 months. The mediation itself can take several hours, or longer depending on the complexity of the case and the willingness of parties to reach a resolution.
How does the mediation process work in will disputes?
Learn more about the mediation process and why reaching an agreement at mediation could be more beneficial than taking the case to court.
Reaching a settlement
The claimant will have to adequately prove that they have a valid claim for a settlement to be reached during mediation. This may involve providing evidence of the deceased’s intent, such as a previous will or a third-party testimony. If the claimant is successful in proving their case, the mediator will then work with both parties to reach a settlement that is fair and equitable.
In a court dispute, the judge will determine the settlement based on evidence presented by both parties. The judge considers the deceased’s intent, beneficiaries’ financial needs and other relevant factors to make an impartial and just decision.
Court settlements can often be a lengthy process, spanning months or even years, due to the inherent slow nature of the court system. Unlike mediation, which tends to be quicker, the court process involves thorough examination of evidence by the judge, further contributing to the time required for reaching a resolution.
Compensation factors
The amount of compensation that claimants request differs among disputes; some request a significant piece of the deceased’s estate, while others may seek minimal financial settlements or non-monetary remedies. The amount the claimant is entitled to is weighed by several criteria, including:
- The applicant’s contribution to the wealth of the estate.
- The applicant’s character and conduct during the court proceedings.
- Provisions, gifts or transfers made to the applicant from the testator (or another source) before their death.
- The net value of the estate.
Additionally, as a foundational basis for a will dispute is financial dependence upon the deceased individual, if the claimant isn’t struggling financially, they may be entitled to less compensation.
The cost of challenging a will
- Cost of gathering evidence and reviewing discovery.
- Legal costs for representation.
- Mediation fees.
- Court fees for filing notices and affidavits.
Who pays legal costs when contesting a will? > Read More
The success rates of will disputes
The latest formal study on the success rates of Australian dispute claims was conducted in 2015 by the University of Queensland, Queensland University of Technology, and Victoria University. It reports that family provision claims have a 74% likelihood of success. This percentage extended to 77% for Queensland-based claimants.
In the instance of a successful case, this typically leads to a probate court order that cancels or modifies the distribution of assets. Yet in the event of an unsuccessful will contestation, the claimant may be without compensation or additional benefits from the estate of the deceased.
In either case, legal expenses incurred during a dispute may be reimbursed, offering financial support to individuals who lack the resources to cover legal representation and court fees. This enables them to pursue their rightful portion of an estate rather than refraining due to financial limitations.
OUR case summaries
Proven Will Dispute Success
Contesting a will to win our client 65% of a $2 million estate
Case Overview Our client’s father passed away in late 2021, leaving his property to our client. After learning that his stepmother was contesting the will,
Granddaughter Gets Over $100K After Contesting Late Grandmother’s Estate
Case Overview Our client’s grandmother passed away in 2021, leaving her property to her daughter, our client’s mother. After learning that she had not been
Adult Child Gets $120K Compensation After Contesting Mum’s Queensland Estate
Case Overview Our client was an adult son wanting to make family provisions claim against his late mum’s Queensland The client’s sister and half-brother also
Frequently Asked Questions
More information about Will Disputes
Here are the answers to a few frequently asked questions on will disputes. For more information, reach out to our team at GMP Law who can answer any questions you may have on will disputes.
In the absence of a will, as governed by the Probate and Administration Act 1898 and the Succession Act 2006, the administrator receives the deceased person’s property, which will be distributed following the applicable laws. Even in the instance of the deceased individual having no will, the distribution of their estate is still able to be contested.
Immediately following a car crash, call the police if you suspect the other driver is under to influence, and call for paramedics if you suspect you have an injury.
Following this, calling your insurer is advised, as well as taking details from other parties and witnesses. Note down any details including time, data and take photos of the scene.
Legal counsel is necessary in will disputes as your solicitor will help:
- Explain the law and your options.
Prepare and file court documents. - Gather evidence and represent you in court.
- Negotiate a settlement.
Choose a reputable law firm specialising in will disputes, offering a no-win, no-fee arrangement to alleviate your financial responsibilities. GMP Law has 35 years of experience in will disputes, with a 98% success rate and 35,000 cases won. We take on all the upfront legal fees, and will guide you with expert legal advice at each step, ensuring you’re set up for success.
