Contesting a will can be a complex process and in this area of law you could have ten judges with ten different decisions on the same set of facts. Accordingly, it is a discretionary area and of high risk.
Grounds for Contesting a Will
You can contest a will if you believe you have not been adequately provided for or if you were left out entirely. Common grounds include:
- Undue influence: The deceased was pressured or coerced into making the will.
- Lack of testamentary capacity: The deceased did not have the mental capacity to make the will.
- Fraud or forgery: The will is fraudulent or forged.
- Family provision claims: You are an Eligible Person defined under the law which is generally a person who had been financially dependent on the deceased during some time in their life and a reasonable person in the deceased’s position would have more adequately provided for you. This will depend upon the facts of each case and the relative financial position as well as factual relationship with the deceased. Some conduct can be regarded as disentitling which a Court would determine would have caused the Deceased not to have made provision. There is no automatic right to be a beneficiary in a will and a person can make a gift to whomever they wish. Some people, for example, leave all of their estate to charity and such Wills are not merely challengeable because they disenfranchise a relative or Eligible Person.
Who Can Contest a Will?
Eligible persons typically include:
- Spouses or de facto partners
- Children (including adopted children)
- Former spouses (in some circumstances)
- Dependents (including grandchildren and members of the deceased’s household)
Court Considerations
The court will consider several factors, including:
- Your relationship with the deceased
- The size of the estate
- Your financial circumstances and needs
- Any contributions you made to the deceased’s welfare or estate
- The deceased’s intentions as expressed in the will
Time Limits
The time limit to challenge a will varies by state:
- New South Wales, Victoria, Queensland, Australian Capital Territory: 12 months from the date of death
- Western Australia, South Australia: 6 months from the grant of probate
- Tasmania: 3 months from the grant of probate
- Northern Territory: 12 months from the grant of probate
Costs
The costs of disputing a will can include:
- Legal fees
- Court fees
- Expert witness fees (if required) In some cases, costs may be paid from the estate, but if your claim is unsuccessful, you may be ordered to pay the estate’s legal cost
As it is a complex area of law it is important that you seek advice from an experienced law practice which conducts this type of matter. We have specialised lawyers who can provide advice and represent you to your best outcome. This will include an advice on what the likely range of outcomes would be if you went to Court. Many of these matters settle at a mediation (often ordered by the Court and facilitated by the Court with a Registrar) or otherwise before Court as the costs and risks can be high.
Call us on 1300557819 and one of our specialised lawyers will contact you for a free conference to see how we can assist you to your best outcome and to indicate the range and likely costs and likely outcomes.
