The passing of a family member or loved one is an emotional time for those close to the deceased. But it can often become that more distressing when disputes arise over the estate and the Last Will & Testament is contested.
Sometimes, people feel that they have been unfairly left out as a beneficiary of a Will after a loved one passes. Having several interested parties in the deceased estate often creates conflict between family members. Sometimes assets can even get held up in the court process.
We’ve put together this guide to contesting a Will to help you understand what’s involved with making a family provision claim on a deceased estate and who can lodge the claim to the court. This guide is broken down into the following sections:
- What does it mean to contest a Will?
- Why are Wills disputed?
- Who can contest a Will?
- Can I contest my father or mother’s Will?
- Can I contest a Will because of dementia?
- Are joint assets included in a will challenge?
- What’s the process of contesting a Will?
- Do I need to go to court to challenge a Will?
- How long do I have to contest a Will in Australia?
- How long does it take to settle a Will dispute case?
- How much does it cost to contest a Will?
- Who pays the legal costs in a Will dispute case?
1. What does it mean to contest a Will?
Contesting a Will is when valued members of the deceased’s family feel they were unfairly left out of a Will or not adequately provided for.
The contents of a Will can be challenged in Australia by law if there is a good reason. This can be based upon a number of factors including whether or not the situation is grossly unfair; financial needs of family members or other dependents; and if the Will maker was subject to undue influence or lacked mental capacity to make the Will. These claims are known as family provision claims.
A family provision claim on the deceased estate can then be made to the court to dispute the Will. It is important to obtain legal advice as soon as possible if you are considering making a claim.
The validity of a Will can also be challenged. This can include things such as whether the Willmaker knew of the contents and impacts of their Will and whether the Willmaker may have been influenced to include (or not include) particular provisions and/or beneficiaries.
2. Why are Wills disputed?
Will disputes generally come about for a number of reasons, including the following:
- proper provision was not made for the person in the Will;
- a promise was made to the person that they would be left a certain part of the estate and that has not occurred;
- there was a clear error in the Will;
- the Will maker lacked mental capacity to make the Will or was subject to undue influence.
3. Who can contest a Will?
The law relating to who is eligible to contest a will differs for each state, known as an ‘eligible person’. Generally, those eligible to lodge a family provision application are as follows:
- a spouse or former partner (including a de facto);
- a child (including a step-child);
- a grandchild or a member of the deceased’s household;
- dependents (someone who is substantially supported by the deceased – including a parent or child).
4. Can I contest my father or mother’s Will?
Yes, you are eligible to contest your father or mother’s Will, however your age is important. If you are over 18 years old, (or in some states over 25) and you are self-sufficient and no longer relying upon the support of your parents, you would have to demonstrate that the deceased had a moral duty to provide for you. You will also need to demonstrate a financial need.
5. Can I contest a Will because of dementia?
In cases where there is an allegation that the deceased lacked the mental capacity to make a Will, often due to dementia, the Will’s validity can be challenged.
6. Are joint assets included in a will challenge?
If the deceased held property in their name together with another person, then the deceased’s share is automatically transferred to the surviving joint tenant and it doesn’t form part of their estate’s assets.
In NSW however, there are provisions in certain circumstances that allow for a half share of the deceased’s joint tenancy to be clawed back into the estate for the purpose of providing funds for a family provision order.
7. What’s the process of contesting a Will?
To make a claim against the deceased estate, or make a family provision claim, it’s advisable to contact a solicitor who specialises in estate disputes.
Some of the general steps required to challenge a Will include the following:
- Step 1: Firstly, you will need to ascertain whether or not you are an eligible person entitled to make a claim (as mentioned in question 3 above).
- Step 2: The claimant then notifies the executor of the Will (usually through their solicitor) of the intention to make a claim. The executor is advised not to distribute the estate until the claim is finalised.
- Step 3: Both parties can enter negotiations to resolve the matter before the need for court proceedings. If a settlement can be reached, a formal agreement is drawn up to protect all parties.
- Step 4: Court proceedings will commence if the matter cannot be resolved. A summons and an affidavit will need to be filed in court, setting out any evidence to support the claim. This is then served upon the executor.
- Step 5: The executor and the beneficiaries have an opportunity to defend the claim
- Step 6: Next, all parties to a Will dispute will participate in a mediation session to try and resolve the dispute over the deceased’s estate.
- Step 7: If the estate claim isn’t resolved at mediation, a trial will be set and all parties will need to present their opposing positions before the court at a final hearing. They will need to demonstrate to a judge that they have a financial need, and this need is measured against the size of the estate.
- Step 8: The judge hears all of the relevant evidence and then decides whether a provision – or further provision – should be made in the estate. and the amount. The judge also decides how the court fees will be paid.
The above is a general outline of the process, and there may be many more steps involved depending on the circumstances of the case.
8. Do I need to go to court to challenge a Will?
The need to go to court when disputing a Will depends upon the willingness of the parties to settle out of court and save money on legal fees. However most deceased estate disputes settle outside of court, without a judge present.
These types of applications can often be settled by negotiation, or mediation, before the matter is heard by the court. If settled, the court will still need to approve changes to the effect of the Will.
If you do commence court proceedings, a mediation conference is usually set as a first step before the need to involve a judge. A vast majority of family provision claims settle at mediation as this is a simpler and less costly option.
Taking a Will challenge to court can be expensive, with no certainty that you will win, so it’s advisable to instead try and settle through mediation.
9. How long do I have to contest a Will in Australia?
There is a time limit to challenge a Will in Australia and each state and territory is different:
- In NSW and ACT you have 12 months from the date of death to lodge a claim in court.
- In Victoria you have six months from the date of the grant of probate to lodge a claim in court.
- In Queensland you have six months from the date of death to notify the executor of a claim and another three months to lodge the claim in court.
- In Northern Territory you have 12 months from the date of the grant of probate to lodge the claim;
- In Western Australia the claim must be made within six months from the date of the grant of probate.
- In Tasmania you have just three months to file a claim in court from the date of the grant of probate.
If you have a good reason for missing the deadline you may still be able to make a claim outside these timeframes. For more information about probate, read our article on deceased estate accounts.
10. How long does it take to settle a Will dispute case?
The time it takes to contest a Will depends on the complexity of the case and the willingness of the parties involved.
It generally takes about six months for settlements out of court and around two years for a court hearing. The process can be sped up if all parties are willing to negotiate early in an attempt to settle the matter out of court.
11. How much does it cost to contest a Will?
The cost to contest a Will depends entirely upon your choice of solicitors and the complexity of the case. The fees can vary tremendously from a few thousand dollars to more than $100,000.
12. Who pays the legal costs in a Will dispute case?
In family provision cases, the general rule is the claimant’s costs are paid out of the estate if their claim is successful.
If the claimant is not successful, they can be ordered to pay the estate’s costs as well as their own. Some lawyers, however, offer a ‘no-win, no fee’ arrangement, meaning you won’t have to pay unless the case turns out in your favour.
Final thoughts on contesting a Will
If you feel that you have been unfairly left out of a Will, it is important to obtain legal advice from a lawyer who is experienced in challenging Wills of deceased estates. It’s important to do this before a claim is lodged, because if your case is not successful you may have to pay expensive court costs.
You will also need to ensure you act to lodge a claim within the timelines for your state, as mentioned above.
This guide is a general outline of the process involved in contesting a Will. Going to court is never a pleasant experience, particularly following the loss of a loved one, but understanding what is involved can make the experience less daunting.
Whether you just need a free Will or an entire estate planning kit, we have a package that suits your needs. Visit the Bare Cremation website here, or chat with our estate planning team on (03) 9917 3388. Or to pre-pay your funeral, call 1800 202 901 or visit barecremation.com.au
Please note: this article is not legal advice. You should chat with a solicitor for specific advice on your personal or legal situation.