Contesting a Will
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Learn more about contesting a will in NSW Australia.
In Australia, the specifics of who can contest a will can vary somewhat by state and territory, but generally, the following individuals might be eligible:
Spouse: This includes a husband or wife, de facto partner, and in some jurisdictions, a former spouse.
Children: This covers biological children, stepchildren, adopted children, and sometimes, dependent grandchildren.
Dependents: People who were financially dependent on the deceased at the time of death.
Others: This can include individuals who were living with the deceased in a close personal relationship at the time of the deceased’s passing. In some cases, persons mentioned in a previous will or those who have lived with the deceased in a domestic relationship might also be eligible.
Members of the household: Some jurisdictions allow individuals who lived in the deceased’s household and were partially dependent on them to contest the will.
It’s essential to consult the specific legislation or a legal professional within the state or territory in question to understand the precise categories of eligible claimants.
Contesting a will can often be perceived as a daunting journey, but with the right guidance, it can be a meaningful and rewarding process. Here’s why:
Upholding Justice: The core reason for contesting a will is to ensure justice is done. It’s about making sure that the true intentions of a loved one are respected and that rightful heirs or beneficiaries are treated fairly.
Professional Expertise: With the support of an experienced law firm by your side, the complexities surrounding will disputes become navigable. Expert lawyers provide clarity, direction, and often facilitate smoother resolutions.
Alternative Resolution Paths: Before reaching the courtroom, many disputes are amicably resolved through mediation or direct negotiations. These alternative avenues often lead to quicker and mutually beneficial outcomes.
Emotional Closure: Beyond the legal aspects, contesting a will can provide emotional closure. Knowing that you’ve taken steps to rectify potential oversights or misunderstandings can be immensely gratifying.
Financial Benefits: While there are costs involved in the legal process, successful claims can result in rightful inheritances that might significantly outweigh the expenses. With the correct legal advice, many clients find the process financially rewarding.
Peace of Mind: Engaging in the process, especially with expert legal guidance, provides reassurance. Regardless of the outcome, there’s peace of mind in knowing you’ve explored every avenue to uphold fairness and justice.
In the hands of dedicated professionals, contesting a will is not just about legalities—it’s about legacy, fairness, and honoring the wishes of those we hold dear. If you believe there’s a valid reason to revisit a will’s provisions, seeking the guidance of an adept law firm is certainly a worthwhile step.
Grounds to Contest a Will in Australia:
In Australia, the grounds to contest a will can vary somewhat between states and territories. However, the common reasons include:
Lack of Testamentary Capacity: The testator (person making the will) did not have the mental capacity to understand what they were doing when they made the will.
Undue Influence: The testator was coerced or pressured into making the will or specific provisions in the will.
Improper Execution: The will was not signed and witnessed according to legal requirements.
Forgery or Fraud: The will is not genuine or was created based on fraudulent activities.
Lack of Knowledge and Approval: The testator did not fully understand or approve the content of their will.
Family Provision Claims: A person who was dependent on the deceased, or had a particular kind of relationship with the deceased, may claim they have not been adequately provided for in the will.
The success rate of contesting wills varies and depends on the circumstances of each case and the grounds upon which it’s contested. A significant proportion of contested will cases in Australia are settled out of court, often during mediation, so exact statistics can be elusive. However, in general, family provision claims have a relatively high success rate, especially if there’s evidence that the claimant hasn’t been adequately provided for.
Contesting After Probate:
Yes, in Australia, you can contest a will after probate has been granted. However, each state and territory has specific time limits within which a will must be contested. For instance, in some jurisdictions, a family provision claim should be made within a year of the deceased’s death, although there are circumstances where the court might allow claims outside of this period.
Always consult with a local solicitor or expert in wills and estates in the specific state or territory to understand the intricacies and current regulations related to contesting wills.
No, not all will disputes require going to court. Many disputes can be resolved without formal litigation through methods such as:
Negotiation: Parties can negotiate directly or through their lawyers to come to an agreement.
Mediation: This is a structured process where a neutral third party (the mediator) assists the disputing parties in reaching a mutually acceptable agreement.
Alternative Dispute Resolution (ADR): Other ADR methods, similar to mediation, can be used to facilitate an agreement without a court’s intervention.
Going to court is typically the last resort, used when other methods of resolution have failed or aren’t appropriate given the circumstances. It’s often more time-consuming, emotionally draining, and expensive than alternative methods. As a result, many legal professionals will recommend trying to resolve the dispute out of court when possible.
However, if you believe a will is fraudulent, was made under undue influence, or there are other serious allegations, court might be the most appropriate avenue. Always consult with a solicitor or expert in wills and estates to determine the best course of action for your particular situation.
A family provision claim is a legal claim made against an estate by a person who believes they haven’t been adequately provided for in a deceased person’s will. The intention behind family provision laws is to ensure that the financial interests of a deceased person’s dependents are looked after, especially if they were not adequately addressed in the will.
In Australia, the specific details of family provision claims, including who can make a claim and under what circumstances, vary slightly between states and territories. However, some common aspects include:
Eligible Claimants: Typically, those who can make a family provision claim include:
- A spouse or de facto partner of the deceased.
- A child or grandchild of the deceased.
- A former spouse in some circumstances.
- Other individuals who were financially dependent on the deceased or had a close personal relationship with the deceased at the time of their passing.
Factors Considered: When assessing a family provision claim, courts will consider various factors, including:
- The claimant’s financial needs and circumstances.
- The nature and duration of the claimant’s relationship with the deceased.
- The size and nature of the deceased’s estate.
- The financial circumstances of other beneficiaries.
- Any contribution made by the claimant to the deceased’s assets or welfare.
- Any previous financial provisions or promises made by the deceased to the claimant.
- Any other relevant matter, including the claimant’s conduct.
Time Limits: There are time restrictions on when a family provision claim can be made following the death. This timeframe varies by jurisdiction, so it’s essential to seek advice promptly if considering such a claim.
Outcome: If successful, the court can adjust the distribution of the deceased’s estate to provide more to the claimant. This may come at the expense of other beneficiaries’ inheritances.
If someone believes they have been unjustly left out or inadequately provided for in a will, it’s crucial to consult a legal professional experienced in wills and estates to assess the potential validity and merits of a family provision claim.
Who Pays the Legal Fees:
Typically, legal costs are paid out of the estate. As the majority of matters settle at mediation, the claimant’s legal costs are usually included in the negotiated settlement amount. If the matter goes to trial and the claim is successful, the claimant’s legal costs are often paid out of the estate, subject to the court’s discretion. If a claim is unsuccessful, the court has the discretion to order the claimant to pay the legal costs of the estate or the beneficiaries defending the claim. Our lawyers can advise on the prospects of success and will only take on matters that have a high potential for a successful outcome.
You can learn about our fees for contested estates here.