Processing the loss of a loved one while deciding on the logistics of what comes next, is a difficult and sensitive situation for everyone involved. Family and friends closest to the deceased sometimes feel a sense of chaos as they try to get everything together for the funeral, as well as manage their loved one’s estate and last will and testament. Temperatures often run high if someone was left out of a will or was promised something verbally that never made it to paper. In this situation, they may decide to contest the will and amend the discrepancy.
Making a family provision claim on a deceased’s estate or challenging a will can be a complicated battle to face on your own. We’ve put together this guide to help you navigate the process and lodge a claim to the court when it is necessary to do so.
Reasons to contest a will
There are many reasons that a will may be challenged, and those reasons tend to be relatively similar across states. The two most common reasons someone may lodge a claim is that the will is not legally bound or those associated with the deceased believe that the will was tampered with.
Other reasons a will may be contested include:
- Errors in the will.
- The will was not drafted or signed according to the law.
- A mental health issue was present or uncharacteristic provisions were made.
- A witness will inherit under the will.
- Unfulfilled promises in the will.
- Improper changes were made.
- Removal of executors or trustees.
- Beneficiaries are missing.
- Estate administration disputes.
- Beneficiaries believe that the deceased was influenced into writing a new will.
After the will is verified for its legality, also known as the probate stage or contentious probate stage of the will, anyone is allowed to see the will by searching the Supreme Court probate records database of their state. Before this time, the document is a private piece of information only shared with a few eligible persons through the Inheritance Act of 1975. Eligible people include:
- Anyone named in the will.
- Anyone named in an earlier will.
- A parent, guardian or child of the will-writer.
- A spouse or domestic partner at the time the will-writer died.
- Anyone who would have been a beneficiary had there been no will.
- A creditor.
- The parent or guardian of someone under the age of 18 who was mentioned in the will.
Anyone on this list is eligible to contest the will should they feel it necessary. If someone from the list of eligibility lodges a claim against the will, it is considered a family provision claim.
However, you must lodge a claim within the time limit per the state’s guidelines. In New South Wales, the Australian Capital Territory and the Northern Territory, you have 12 months from the date of death to lodge a claim in court.
If you file in Victoria or Western Australia, you have 6 months from the date of death to lodge the claim in court. In Tasmania, you only have 3 months to file a claim from the probate court date.
In Queensland, you have 9 months from the date of death, including 6 months in which to notify the executor of the claim and 3 months to actually lodge the claim in court. If you attempt to lodge the claim after this time, you should seek legal advice as you could still be eligible.
The process involved in contesting a will
There are several steps you should be aware of after you have lodged your claim. These include:
- First, both parties will enter into negotiations to resolve the issue with the hopes of coming to an agreement without involving the court. If an agreement is reached, a formal document will be drawn up that meets all parties’ needs.
- Should an agreement not be reached, court proceedings will take place.
- A summons and an affidavit will be filed to the court, outlining evidence to support the claim, and will be served to the executor.
- The executor and beneficiaries have an opportunity to defend the claim, where all parties will come together in a mediation session.
- If an agreement is not reached, the dispute will go to court, where arguments must be made in front of a judge before the final hearing.
- The judge will then decide on any provisions that need to be made to the will and how the court fees will be paid.
Depending on the specifics of the case, the steps involved may deviate. If agreements can be made outside of the court, a judge will still need to approve the changes to the will.
Taking a family provisions claim to court could get expensive, with no certainty that you will win the case. It’s advisable to seek advice from a legal professional and try to settle the case through meditation.
Factors the court will take into consideration
A common statement in this field of law is that no one contests a will or an estate unless they have to. Important points to remember when facing this task is to consider what the court will need to be satisfied with the claim.
Factors that the court may consider in determining the provision of the claim include any disabilities of the claimant, the financial need and earning capacity of the eligible person, and the size and nature of the estate if one is included on the will.
Coming to a settlement
Coming to an agreement for the will and settling the dispute will depend on the willingness of the parties involved. The claimant will need to have a valid reason for contesting the will and support the claim with evidence that proves why they are entitled to certain assets. Generally, it takes about six months for settlements outside of the court and two years for a trial and court hearing.
The legal costs involved in a contested will are also dependent on the specifics of the case and the choice of solicitors involved. The legal fees can vary between a few thousand dollars to more than $100,000.
Notional Estate
When faced with contesting an estate with no will, the property is divided amongst the heirs, such as the deceased’s spouse, children and extended family. If no one steps forward to claim the estate, the entire property goes to the state.
Notional Estate is a complex law unique to NSW that relates to estates that are not in the name of the deceased as of the date of their death, such as superannuation. In a family provision case, assets that were distributed before the death of the deceased could be “clawed back” to the deceased’s estate.
Working with a family provisions claims lawyer can help you navigate through the challenges that can arise in this type of proceeding.
Success rates and what happens after you settle
Working with a family member or relative can be challenging all on its own. Add in the emotional distress of a deceased loved one and temperatures can easily boil up, making negotiations more complicated than they should be.
Although success rate studies have not been conducted since 2015, The University of Queensland, Queensland University of Technology and Victoria University notes in its research that judicial case reviews of family provision claims have a 74% chance of succeeding.
No-contest clause
The testator may have included a no-contest clause in their will that means no one can challenge the will. If you contest a will with this clause, and your challenge fails, you will be legally disinherited.
Self-proved
A notarised will can still be contested. However, a self-proving affidavit avoids a challenge on the basis that it was not properly prepared or witnessed. Self-proving the will means it went through an initial legal proofing process ahead of the official examination by the court.
What happens after you contest
If you win the claim, you will take control of the assets you went to court for. To which, you will receive a check for the cash you claimed or a direct deposit into your bank account. The property you won will be transferred to you in your name.
However, if you lose, you could be disinherited from the estate assets and even face challenges from other beneficiaries.
A dispute lawyer can help
Working through the different challenges and clauses of contesting wills is no small task to handle. When it comes to a deceased will, where the person who created it is not there to clarify or defend its contents, court proceedings are more complicated and delicate to navigate. That is why working with a law professional can be your biggest help throughout the process.
Gerard Malouf & Partners is a Leading Australian No Win No Fee Law Firm. We specialise in maximising compensation results from your family provisions claim. Make an enquiry today or give us a call to get started and learn more.
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