How much does it cost to contest a Will in court and what is the process?
There are a number of legal grounds available to Contest a Will. The Court process and costs will vary depending on which legal ground is used.
What is a family provision claim?
A Family Provision Claim is a claim made by an eligible person, that the deceased did not make adequate provision in their Will for their proper maintenance, education and advancement in life. If a Family Provision claim is successful the Court will make orders to vary the Will of the deceased to allow adequate provision to be made by providing or increasing the eligible person’s share in the deceased Estate.
What is the process for a family provision claim? (How it works)
The process for making a Family Provision Claim is to make an application to the Supreme Court of New South Wales.
This must be submitted within 12 months of the date of death of the deceased. Applications can be made outside this 12 month period. But you need to provide satisfactory evidence to the Court, explaining the reasons for the delay in making the Application.
Once the application has been filed in the Court, the Court will order the parties to attend mediation to attempt to settle the dispute without the need for a court hearing. The Court is focused on the early resolution of Family Provision Claims, as a way to minimise the costs of the proceedings. A large majority of Family Provision Claims are resolved through mediation and never proceed to the costs of a court hearing.
How much does a family provision claim cost? Who pays?
If the matter is not resolved by mediation, then the application will be set down for hearing before a Judge of the Supreme Court. If the Family Provision claim is successful, the costs of the claim are usually paid out of the estate. This means the successful person will not incur any legal costs or expenses in challenging the Will.
Contesting an invalid Will (process and costs)
It is also possible to Contest a Will on the grounds that it is not a valid Will. This can be for a number of reasons such as; the Will not being properly witnessed, undue influence or the deceased lacking testamentary capacity at the time of making their Will.
Contesting an invalid Will also requires an application to the Supreme Court of New South Wales.
It is important to obtain expert legal advice on Contesting an invalid Will, to ensure that you understand the process as well as the costs that you may incur during the proceedings. An expert Wills and Estates Lawyer can ensure that your case is carefully considered and evidence gathered before making an application to the Court.
How we can help
Graeme Heckenberg is an expert Wills & Estates lawyer and will be able to guide and advise you on Contesting a Wills.
Graeme offers a “No Win No Fee” policy, for Contesting a Will in a Family Provision Claim. If you are living on the Northern Beaches and surrounding Peninsula and need expert advice, contact The Northern Beaches Lawyer today for an appointment close to home.
