How to challenge a will: Your comprehensive guide

Going up against your family members and perhaps your closest friends when contesting a will can be a complicated and emotional process. Not only are you grieving for your loss, but now you also need to contest a will that you feel like you’re entitled to being part of.

There is a lot to consider as you look into contesting a will such as time limits, qualifications and processes. All of these should be carefully considered with the help of will dispute lawyers. Let this comprehensive guide help you understand the steps involved in challenging a will so you can prepare for every step of the process.

What does it mean to contest a will?

Contesting a will means making a formal claim with the courts of your state or territory because you have either not received adequate provisions from the will or you suspect the will is not legally bound.

Contesting a will is typically referred to as making a change in the will to receive more or any provisions from the deceased estate. Challenging a will means claiming the validity of the will itself. The difference between challenging and contesting a will to the person making the claim is only necessary when you consider the time limits to filing a claim.

Here are a few more reasons you may file a claim against a will that may be a little more specific to you:

• Errors in the will.
• The will was not drafted or signed according to the law.
• A mental health issue was present or uncharacteristic changes were made.
• A witness will inherit under the will.
• Unfulfilled promises in the will.
• Improper changes were made.
• Removal of executors or trustees.
• Suspected undue influence.
• Beneficiaries are missing.
• Estate administration disputes.
• Beneficiaries believe that the deceased was influenced into writing a new will.

If you are left out of the will or believe you should have inherited more than is written in the document, you will need to take the necessary steps to prove your right to the will’s estate. This could include proving the will is invalid, working with the other beneficiaries to enter into a Deed of Family Arrangement or making a claim.

A Deed of Family Arrangement is a process of convincing all those named in the will to include you as a bigger part of the estate. All parties include not only the beneficiaries, but the executor and creditors as well — making this task incredibly difficult on your own.

When you challenge a will, the executor, or the person in charge of distributing the estate to those named in the document, is the one who will represent the intent of the will. This person is whom you will face throughout the claim.

What does it mean to contest a will?

Probate is the time following the will-maker’s death when the document is looked over by the courts who will attest that the document was written and signed legally. Once it has been approved, the executor will prepare to distribute the estate. This process will happen even if there is no will, but there is still an estate that needs to be distributed.

Any eligible person can see the will before probate and file to make provisions to the document, as per the Inheritance Act of 1975. The Act outlines that the document is not legally binding and any eligible person can make changes to the document if they find the will seems like it has been tampered with. It does become more difficult to make changes to a will if the estate is already being distributed, so it’s important to act as soon as possible after the death of your loved one.

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.

Additionally, anyone from this list can lodge a claim to make provisions to the will, known as a family provision claim. This is the same type of motion you will take if there is no will at all, but you still have the right to earn benefits from the estate.

Lodging a claim differs from state to state. Let’s dive into how to file a claim depending on where you live.

What does it mean to contest a will?

As we jump into the details of contesting a will, be aware that there are a few steps involved and the specifics shift depending on the state or territory you live. To start, let’s speak more generally and map out the process involved that you will come across no matter where in the country you are:

1. If probate has already been enacted, you must reach out to the executor before they start doling out parts of the estate.
2. The court will put a caveat on the will until an agreement has been made. The executor will need to pause distributing the estate.
3. Both interested parties will enter into negotiations to meet the needs of the claimant without getting the courts involved. If all parties can agree, a lawyer will draw up a formal document that reflects the new terms of the negotiations.
4. If all parties cannot agree, then a claim will be lodged and court proceedings will take place.
5. Mediation could be an interim final step to avoid court involvement where respective lawyers are present with a court-appointed mediator. All parties will discuss the provisions at hand in a more organised space.
6. If no consensus can be reached, then a judge will get involved. Arguments will be made before the final adjudication.
7. A summons and an affidavit will be filed to the court, this document will provide evidence to support the provision, and will be served to the executor.
8. Finally, the judge will decide on next steps, the provisions that need to be made to the will (if any) and how the court costs will be paid.

Even if agreements are made outside of court, the changes will still need to pass through the court to make the document final and legally binding. There is no guarantee that the court will decide in your favour, though and the decision to take the case to court could get expensive. It’s important to at least consult with a lawyer, if not allow them to help you throughout the process to ensure the best outcomes. A provisions lawyer could even tell you whether or not you have a case at all and save you the time and effort of going through the motions.

What does it mean to contest a will?

In Queensland, you only have up to nine months to file a claim after probate. This time includes the six months you have to notify the executor of your motion and three months to lodge the claim in court. Any time outside of this should include legal advice and assistance to see if you are still eligible or if the estate has already been completely distributed. The courts will consider your:

• Financial need for further provision.
• Relationship with the deceased.
• Contributions made to improve the estate.
• Health and ability to accumulate income.
• Standing within the will such as how much you’ve already been provided for.

The court will consider how much of the estate is available and how changes will affect the other beneficiaries named in the will.

In New South Wales, you have 12 months to file a claim. You and the deceased must have been residents of NSW and the deceased estate must be wholly or partially within NSW as well. To file a claim, you must provide evidence of your eligibility and why you believe you should have a share in the estate. Evidence could be proof of relationship and any documents that point to your inheritance like written promises or trusts made in your name by the deceased.

The courts will follow similar guidance in assessing your eligibility for further provision as well as your physical, psychological and financial needs.

In Victoria, you have six months to file what they call a Testator’s Family Maintenance Claim (TFM) after probate has been granted. You can lodge the TFM if these three points are true:

1. You are an eligible person.
2. You have evidence that proves you’ve been left without adequate provision.
3. The will is valid.

Similar to NSW laws, the deceased must have been a resident of Victoria and own property and assets within the state for you to file a TFM claim.

In the Australian Capital Territory (ACT), there is no time limit to challenging a will’s validity, but there is one for contesting the will. It’s important to act as soon as possible in both cases, but if you are contesting a will, you only have six months to do so from when probate is granted.

You could also make a claim on a will if you have an interest in it. Interest is a situation in which you were named in the current or a previous will, or if you would be eligible for entitlements if there was no will at all — known as the laws of intestacy.

In Western Australia (WA), the government has made laws that allow a person to include and exclude anyone they want from their will and the situations in which you can make a claim are limited. You can contest a will within six months after probate has been granted if:

• You were named in a previous will.
• The deceased person did not have the mental capacity to write and sign a valid will.
• There was undue influence over the will-maker while they were writing it.
• The will-maker did not provide enough for certain family members.

If you feel like you’ve been left out of the will, you should file a Family Provision Act claim within the statutes of limitations.

In the Northern Territory (NT), you have up to 12 months to file a claim from the date of Probate. You could also file outside of the 12 months with special leave from the Supreme Court. Only direct relatives of the deceased can make a claim such as:

• Children.
• Spouses and domestic partners.
• Parents.

Ex-spouses, stepchildren, grandchildren and de facto spouses can only file if they have maintained a close relationship with the deceased up to the time of their death. Closeness, or in legal terms maintenance, with the deceased means that the person was not only living with the will-maker, but was dependent on them as well.

What laws support making claims against a will?

The two laws that support your claims against a will include the Family Provision Act and the Succession Act. The Family Provision Act covers the steps involved in disputing the will, and allows for wills to be disputed at all. The Succession Act outlines who can contest a will or make a claim if there was no will left. Each state has laws surrounding these Acts.

Notional Estate

Notional Estate is a law specific to NSW and involves a complex situation where assets are not left in the name of the deceased at the time of their death. This could be an asset such as their superannuation. The assets are divided among the heirs of the estate and if no one steps up or is still living to claim the estate, then the entire asset goes to the state. In a family provision case, assets that were distributed before the death of the deceased could be “clawed back” to the deceased’s estate.

Outcomes of contesting a will

The outcome of contesting a will depends on the willingness to agree from all parties. You will need to have a valid reason for filing a claim and have supporting documentation to support it. Before getting involved in filing, it’s important to know that it may take up to six months after filing a claim to come to an agreement outside of the court and up to two years if the claim is passed in front of a judge.

Legal fees could also amount to between a couple thousand to up to $100,000 depending on the specifics of the case.

After you win a case, you will receive a check from the court or a direct deposit into your bank account. Any physical property will be changed under your name. If you lose, however, you could face disinheritance from the family and further challenges from beneficiaries.

There are also several clauses that could deter you from contesting the will at all such as the no-contest clause and the self-proving affidavit. If you lose in a case with a no-contest clause in it, this could leave you legally disinherited. In a self-proving affidavit case, you are contesting against the court’s judgment of a previously valid will after it has been notarised.

Weighing your options

Working with a family provisions claim lawyer can help your odds of succeeding in contesting the will.

Gerard Malouf & Partners solicitors are skilled in guiding you through the process and are known as the leading no-win, no-fee lawyers for dispute claims. It’s important to get the process of lodging a claim as soon as possible. Contact us today to get started with a no-obligation consultation.