The loss of a loved one is a deeply emotional time. It can also be a distressing period if there are Will estate disputes. Challenging a Will isn’t a decision to be taken lightly, but if you have been unfairly left out you may have no choice. Contesting a Will often leads to conflict within the family and assets may be held up because of the court process. As a beneficiary or someone left out, you need to know the ins and outs of contesting a Will and what qualifies you to contest a deceased estate.
When a loved one passes, they leave a will behind which determines how their estate is settled. There are several factors to consider – such as when the situation is grossly unfair or when the deceased was subject to undue influence. A claim against the contents of a Will is known as a family provision claim. This simply means the person contesting the Will has a right to do so. You may also challenge the validity of a Will, if you have reason to believe there are authenticity issues.
Why Contest A Will & Who Can Do So?
Will disputes can be the result of several reasons, from a lack of provision for a particular person within the Will or a promise made that was not listed in the Will. There may be an error in the Will, or the deceased may have lacked the mental capacity to draw the Will up at the time they did so.
In terms of contesting a Will, you must be an eligible person to do so. That generally covers a spouse, de facto partner or former partner; children (including step and adopted); grandchildren; dependents. So, if your parent has passed away, you can contest the Will if you have been unfairly provided for. However, if you are over 18, you will need to prove there was a moral duty for the deceased to provide for you and demonstrate a genuine financial need.
What Is the Process?
If you wish to contest a Will, you need to reach out to estate litigation lawyers. The first step is to determine whether you are classed as an eligible person. The second is to notify the executor of your intention to lodge a claim. The executor should not distribute the estate until the claim has been finalised. At this stage, the parties can enter negotiations. If a settlement can be found at this stage, there is no need to proceed to court. If no settlement can be agreed upon, then court proceedings begin. The claimant will need to file a summons and affidavit, which will be served on the executor. Part of this process is to provide evidence that will support your claim, and the executor will have an opportunity to mount a defence.
The involved parties will enter meditation to resolve the dispute. If it isn’t resolved at this point, it will proceed to a trial where all parties present their positions before a judge makes a decision. The judge will determine the provision and address who is responsible for the court fees. You will only need to attend court if you cannot reach an agreement in the negotiation or mediation process.
How Long Does It Take?
There are time restrictions when it comes to challenging a Will. In New South Wales, you have 12 months from the deceased’s date of death to lodge your claim with the court. Other states have shorter time limits, with Victoria giving claimants six months and Tasmania only three. You may be able to file a complaint after the deadline if you have a good reason.
The time it takes to settle a dispute will depend on the willingness of the involved parties and the complexity of each individual case. If you settle out of court, the process generally lasts around six months. If the case proceeds to court, it can take up to two years to complete the process. You can hasten the process if everyone is willing to negotiate early to settle the matter quickly.
Who Pays The Legal Costs?
It does cost money to contest a Will, and it will depend on the solicitor you choose, as well as the case’s complexity. It can be as low as a few thousand dollars and as much as $100,000 or more. In terms of who will foot those costs, that generally depends on the outcome of the case. In a family provision situation, the claimant’s costs are paid by the estate if they succeed in their claim. However, if the claim is unsuccessful, the claimant will have to pay their own legal costs and sometimes, the estate’s legal costs as well.
Deceased Estate Lawyers AJB Stevens Can Help
If you are in a Will dispute, you need estate litigation lawyers to look after your best interests. A Will can be challenged if you meet the legal requirements to do so set out by Australian Law. Will and estate lawyers AJB Stevens can help you contest a Will. We will provide you with advice and guidance as to whether you have a rightful claim to contest and help you navigate the court process to ensure you receive a fair settlement. Contact us today to discuss your legal challenge.