Probate & Contesting a Will

Contesting a Will

The death of someone close to you is painful enough, it hurts even more when you discover you have either been left out of a Will or you have been unfairly provided for. If this is the case then you need Goodman Group Lawyers URGENTLY. Understanding you position if you qualify to contest a Will is important however you also need to be mindful there are very strict time limits to contest a Will. You must act quickly. Explore more below about how you can contest a Will and think how your life could be better off if you take action now.

Below may assist you with some questions you may have about contesting a Will. Every day people call us to see if they are eligible to contest a Will. We invite you to call us on and arrange your free consultation to learn more.

FAQ – Contesting a Will

Contesting a Will, what does this mean?

Contesting a Will is also known as a family provision claim This is when the parties agree the Will is valid however it is alleged by one or more people that they have not been properly provided for from the estate of the deceased. They will argue they have not been left with an adequate financial provision from the estate to cover such things as education and general expenses for their future.

I’ve been told I have a family provision claim, what is that?

A family provision claim is the same as contesting the Will. That is you may not have been adequately provided for in the estate or you have been left out of the Will completely.

Who can contest a Will?

This changes from state to state.

Victoria
– Husband/wife, spouse
– Children, stepchildren, adopted children, believed the deceased was a parent, grandchildren
– A person who at the time of the deceased’s death was a member of the household

New South Wales
– Husband/wife, spouse
– Child, grandchild, dependant
– Close personal relationship with the deceased

Queensland
– Husband/wife, spouse
– Child, step-child
– Parent (if dependent at date of death)
– Dependant at date of death

South Australia
– Husband/wife, spouse
– Child, step-child, grandchild
– Parent (If contributed to the maintenance of the deceased)
– Sibling (If contributed to the maintenance of the deceased)

Tasmania
– Husband/wife, spouse
– Child
– Parents if deceased dies without spouse or children
– A person with a close relationship with the deceased who was receiving maintenance or entitled to receive maintenance from the deceased

Western Australia
– Husband/wife, de facto
– Child
– Grandchild – who was being maintained, or living with their parents and that parent was a child
– Stepchild who was being maintained by the deceased
– A parent

Northern Territory
– Husband/wife, de facto
– Children, stepchildren, grandchildren
– Parents

What is the time limit to contest a Will?

The time limit to contest a Will does vary from state to state and also the timing when the limit starts varies too.

Victoria – within 6 months from a Grant of Probate
New South Wales – within 12 months from the date of death
Queensland – within 9 months from date of death if written notice is provided within 6 months from date of death
South Australia – within 6 months from a Grant of Probate
Tasmania – within 3 months from a Grant of Probate
Western Australia – within 6 months from a Grant of Probate
Northern Territory – within 12 months from a Grant of Probate

What needs to be considered before you contest a Will?

Before contesting a Will the following needs to be considered before commencing legal proceedings.

– You have a financial need and the estate should provide for you.
– The nature of your relationship to the deceased and how long that relationship was.
– Your character, conduct and how you interacted with the deceased.
– Any contributions you made to the deceased either financial or otherwise when they were alive.
– The obligations the deceased had to you when they were alive especially near the end of their life.
– Any financial resources available to you including other people which you may depended on in the future.
– Any provisions the deceased made to you during their lifetime.
– Any disability or vulnerability you may have.
– The circumstances of other beneficiaries or claimants of the estate.

Can you contest a Will after the time period expires?

Yes you can. To contest a Will outside of the of time period you will need to demonstrate to the court there was valid reason for not contesting the Will within the time period. Contesting the Will after the time limit is difficult and even more difficult when the estate has been distributed to the estate’s beneficiaries.

What are the grounds to contest a Will?

The grounds to contest a Will vary from state to state. The underlying principals are that you must demonstrate to the court you are an eligible applicant and that the deceased owed you a moral obligation to provide for you in respect to your financial and personal health needs

Can you contest a Will after Probate has been granted?

Yes you can. In Victoria and New South Wales you can only contest a Will after Probate has been granted.

Can you contest a Will before Probate?

In some states you can but not in Victoria or New South Wales. However, don’t wait for Probate, you need to take action ASAP, we encourage you to call us to commence preparations.

What are the costs to contest a Will and who pays?

The costs to contest a Will is dependent on many different factors and varies from one law firm to another. Goodman Group Lawyers does not charge hourly rates unlike many law firms. We believe this can slow a case down, we offer our services at a fixed price and on a No Win No fee basis. In most cases it is the estate that pays the legals costs of the parties but sometimes these costs can be capped.

What happens if I contest a Will and I’m unsuccessful?

If the case goes trial you may have to pay the legal costs of the estate. Most contested Will claims are settled at mediation and if your claim is not successful it is important to negotiate at the very least that you won’t be liable for the estate’s legal costs. We highly recommend you obtain legal advice prior to contesting a Will as your lawyer can provide an insight into the strength of your case. In most cases we offer our services on a No Win, No Fee basis on the basis you have a strong claim and so you can commence contesting the Will without having to pay any legal costs upfront.

Do I need to come to your office?

Not at all, we have acted for many clients who live in different states and in regional locations. Your contested Will case is easily managed over the phone, email and zoom.

Will I need to go to Court?

Most contested Will cases settle prior to trial. In fact over 95% of our contested Will cases settle either prior to or at mediation.

How long does it take to contest a Will?

This all depends on each case and the state which it is heard. Most of our cases settle within 6 to 8 months, some even quicker. More complex matters can take longer to settle.

When you contest a Will is it a requirement for the parties to mediate?

Mediation is a vital part in most litigation matters and especially so when contesting a Will. The courts prefer the parties to resolve their dispute before a final hearing and mediation is a powerful and effective forum to reach a settlement. In most contested Will cases the parties will be ordered by the court to attend mediation.

Do most contested Will cases settle without going to trial in court?

Yes, a high number of cases settle prior to a final trial before a judge. Our success rate in settling cases before trial is 98% saving our client’s the heartache and stress of a trial.

Can an Executor contest a Will?

Yes, an Executor of an estate can contest a Will if they are eligible. The Executor will need to renounce their position as Executor.

Can a beneficiary contest a Will?

Yes a beneficiary can contest a Will. We have acted for many beneficiaries who have found they have not been adequately provided for in Will.

Can a grandchildren contest a Will?

Yes however there are certain factors which are unique for each state. Generally for a grandchild to contest a Will they will need to demonstrate they were financial dependent on the deceased or they resided in the same property. There is also an overarching principal the deceased had a moral duty to provide for the grandchild from their estate.

Can children (including adult children) contest a Will?

Yes minor children and adult children can contest a Will.

Can a parent contest a Will of their children?

Yes a parent can contest a Will of their child if they can demonstrate a financial dependency. This is in the case of both minor and adult children. A child under the age of 18 can make a Will with the assistance of the court (Victoria).

Can a stepchild contest a Will?

Yes they can contest a Will but there are certain conditions state by state. The stepchild will need to demonstrate that the deceased owed a moral obligation to provide for the stepchild and the stepchild has a financial need in respect to their personal circumstances.

Can a sibling contest a Will?

Yes they can however they would need to prove that the deceased sibling owed a moral obligation to the contesting sibling to make provision for them. In addition to this the contesting sibling would also need to have resided with the deceased and set out how they were dependent on the deceased.

When contesting a Will what property and money is part of the estate ?

Strictly speaking, only the property in the name of the deceased is considered to be part of their estate. Jointly held property such as real estate is not part of the estate, the surviving proprietor(s) will take ownership. Superannuation does not automatically form part of an estate, trustees of the super fund will distribute monies from the fund in accordance with the instructions they hold. Other trust property such as family trusts, unit trust etc do not form part of the deceased estate.

When contesting a Will what property and money is NOT part of the estate ?

Property which is held jointly or which is part of a trust is not part of the deceased estate. When contesting a Will you need to consider real estate that is held in joint names (typically couples hold property jointly but to be sure you should obtain a title search) as this property will pass to the surviving proprietor. Property held in a trust on behalf of the deceased does not fall into the pool of these contested Will estate.

Do assets held as a tenant in common form part of the estate property pool when you contest a Will?

Yes, the deceased’s property which is held as a joint tenant will form part of the estate and be subject property to claim when the Will is contested.

Is superannuation part of the estate property pool when contesting a Will?

It depends on each state. In Victoria super is not included as part of the estate and would not be available to a claim when someone contests the Will.

When a notional sum is left to a beneficiary in Will, say $500, does this prevent that beneficiary from contesting the Will?

No, this is a common misconception and it does not prevent that beneficiary from contesting a Will. Other factors will also need to be considered in making an application to the Court depending on the circumstances of the person contesting the Will.

The estate has already been distributed, can I still contest the Will?

It depends on certain circumstances and each claim is unique. The law in each state has time limits to contest a Will however each state’s courts can consider an application to contest a Will if it is made out of time. Examples where an application can be made out of time is if the executor was notified of the claim within the required time period. If an Executor distributes funds from the estate to beneficiaries when they know a claim is alive a court may order the executor to reimburse the estate from their own personal funds.

Probate was granted in a different state to me, can I still contest the Will?

Yes, as long as you are an eligible party to contest the Will it doesn’t matter where you live.

Am I entitled to see a copy of the Will?

Each state has different laws, in Victoria section 50 of the Wills Act  states that a person named in the Will or any prior Will (beneficiary or other person), spouse (at the date of death), domestic partner, parent or guardian of children of the deceased, a person entitled to a share of the estate if the deceased died intestate (died without a Will) or creditor of the estate can inspect a copy of the Will.

Can you contest the estate when there is no Will?

Yes you can. The same laws apply to contesting the estate when the deceased did not have Will. You may find that the entitlement pursuant to the laws of intestacy may not adequately provide for you because of your personal circumstances. A claim will be dependent on your relationship and your pre-death dependency on the deceased.

What if the Will is found to be invalid?

Most properly formed Wills contain a clause which revokes any prior Wills. If a Will is found to be invalid and a prior Will had been made then that prior Will (also known as the penultimate Will) will be considered to be valid. In that case if someone was not adequately provided for in that Will, it can be contested. If no prior Will was made then the estate would fall into intestacy and the estate would be distributed in accordance to the laws of intestacy. If a person does not believe the provision allowed for in an intestate estate is adequate then they may contest the estate providing they can support their claim.

Can you contest a Will if you believe the Will maker had dementia when they made their Will. 

If it can be established the Will maker at the time of making their last Will lacked the mental capacity to make their Will it could be found by the court that their last Will would be invalid. If this was the case then the Will prior (also known as the penultimate Will) would be used to obtain probate. If there penultimate Will failed to adequately provide for a valid claimant they may be able to contest that Will. If there was no other prior Will then the estate would fall into intestacy and the estate would be distributed in accordance with the laws of intestacy for that state. If someone who is an eligible claimant was not adequately provided for then they maybe able to contest the estate.

Can you contest a Will if you believe the Will maker was bullied or was subject to abuse? 

Strictly no, such claims seek to test the validity of the last Will of the deceased. It is very difficult to prove such matters and as such these cases rest on the facts. Once the court has determined the last proper Will of the deceased or if there is no prior Will then the estate may be contested if the applicant has grounds to contest and they are eligible.

Can you contest probate? 

Contesting probate is also known as challenging the validity of a Will, and as such it is challenging the Grant of Probate of the alleged invalid Will. Once the correct Will is determined or if it is determined the estate is intestate (that is the estate is distributed in accordance with the law because of no prior Will) then someone may contest that Will or the estate if they have a claim and are eligible.

How do you commence to contest a Will? 

Contesting a Will and the procedures which are followed are determined by laws in the state probate was granted. It is recommended you seek urgent legal advice before commencing any claim because if a faulty claim is made the estate may seek legal costs from you.