contesting a will, estate litigation lawyers

Contesting a Will

Sensitive, expert advice.
No cost, no obligation 30 minute assessment.

Book your free consult or call us on 03 5273 5273

Considering contesting a Will?

Let us guide you through.

While we all have the freedom to leave our estate to beneficiaries of our choosing, on occasion it may be appropriate to challenge the Will of a person who has passed away. This is known as “contesting a Will”.

At Coulter Legal, we can help you with any Estate Dispute, to ensure you know your rights and are comfortable with how an estate is dealt with.

Are you an executor of a Will looking for advice? Find out more about how we can assist you with estate administration or defending a claim.

What is the process?

  1. Use our secure online induction in your own time to provide our lawyers with the information they need to assess your circumstances.

  2. Our lawyers contact you to provide advice regarding your circumstances, the options going forward and our pricing options. You then decide how you wish to proceed.

  3. Then our lawyers guide you through the process of navigating your claim.

Get started now

Contact us to book your no cost 30 minute initial consultation

Get started now
or call us on 03 5273 5273

What our clients have to say

Coulter Legal
4.8
Based on 177 reviews
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Kim HitchensKim Hitchens
23:24 05 Apr 24
Satbir is an exceptional lawyer and human being. He is able to skillfully navigate family law matters in a pragmatic way that always honors the unique needs of the children and families he represents. I can't speak highly enough of Satbir. I will be forever grateful for the positive child focused outcomes he has achieved and the compassionate way he conducts himself.
Andy JCAndy JC
01:49 30 Mar 24
Very helpful team. Stored my land title for over 40 years safe and sound, easy to deal with for release when property was sold.
Laura MLaura M
03:44 20 Mar 24
Satbir was excellent very understanding and knowledgable during a tough time
Heather EnnorHeather Ennor
01:51 20 Mar 24
Extremely Happy with the professionalism and dedication I received from Satbir Singh in relation to the situation I found myself in.His expertise and advice has been greatly appreciated.I would strongly recommend him and his firm.Feeing very relievedHeather Ennor
Dominic LuddyDominic Luddy
02:28 17 Mar 24
Satbir has been a great ally in what has been a very protracted experience to settle parenting and financial matters during separation. He has gone above and beyond for me on several occasions, making sure everything has been as smooth as possible, and important to note in legal circles, I’ve always felt that the fees have been very reasonably applied - which did not appear to be the case for my partner’s legal representative.
Nicole LeeNicole Lee
05:44 07 Mar 24
Satbir is a wonderful family lawyer who is extremely knowledgeable and helpful. He has gone above and beyond for me, making sure everything has been as smooth as possible.
Glen BurkeGlen Burke
02:39 01 Mar 24
James Maxwell is your typical family law expert who provides an empting of your bank account with very little outcome achoeved or accountability. Extremely disappointed. To his credit the system allows and supports this type of behaviour......when will things change? I am disgusted. Do not trust lawyers in general, the system is broken
Tony HorshamTony Horsham
12:44 13 Feb 24
Satbir from Coulter Roach was very professional, knowledgeable and easy to deal with. He worked very hard to achieve a favorable outcome. I would recommend Satbir to anyone who is looking for these qualities in a solicitor.
Carli HesterCarli Hester
20:38 09 Feb 24
From my very first meeting with Satbir, it was evident that he approached his work with genuine care and empathy. Satbir took the time to listen to my concerns and understand the complexities of my situation, providing guidance and reassurance every step of the way.Satbir navigated the legal aspects of my separation with diligence and proficiency, ensuring that my rights were protected and that I understood the implications of every decision we made.What truly set Satbir apart was his kindness and compassion. He provided not only legal counsel but also emotional support, offering a listening ear and words of encouragement when I needed them most.Thanks to his guidance, I was able to navigate the challenges of my separation with greater ease and confidence. He helped me find clarity in a time of confusion and provided me with the strength to move forward toward a brighter future.I would not hesitate to recommend Satbir to anyone in need of legal assistance, knowing that they will receive not only top-notch legal representation but also the compassionate support they deserve.
Mark HockeyMark Hockey
23:59 08 Feb 24
Satbir is highly recommended, personable and understands the importance of meaningful legal direction. He capably reads the room and does all and sundry for the best outcome for his client. He certainly shows compassion. He is a wealth of knowledge and represents Coulter Legal with integrity and respect.
Michelle PantelicMichelle Pantelic
06:46 08 Feb 24
Highly recommend Satbir Singh from Coulter Legal. He helped me through my legal separation and made the process as stress free as possible
Meredith HamblinMeredith Hamblin
04:35 08 Feb 24
Excellent, caring staff. Thank you for the support and assisting in my property settlement. Highly recommend Coulter Legal.
Tegan McPhailTegan McPhail
23:12 06 Feb 24
Satbir and Jade helped me finalise a good portion of my matter. They were very patient and understanding with an honest and full disclosure of expected costs.Thank you Jade and Satbir
Ravi D ManshaRavi D Mansha
06:08 31 Jan 24
I would like to thank Satbir Singh from Coulter Legal. He is a very experienced and professional special counsel who works with clients at their own pace, portrays empathy and emotional intelligence to help resolve legal matters. I would be very happy to recommend Satbir to anyone who is seeking family and relationship law related services. Thank you again Satbir for your time and services.
Dianne ToeDianne Toe
05:33 24 Jan 24
We were very happy with the level of care and attention to detail provided by all of the members of the Coulter legal team. Our property transaction was quite complex and we received timely and thorough advice every step of the way.
Julie MoralesJulie Morales
02:12 28 Dec 23
Isaac and his team recently assisted my mother with the finalisation of my father's estate. The service and attention to detail provided by Isaac and the team was excellent. He was always empathetic to this being a very difficult time for my mother and would explain the process in layman’s terms so we always understood where all matters were at. We would have no hesitation in using the professional services of Coulter Legal again in the future.
Ricky HowlingRicky Howling
23:16 22 Nov 23
Lauren & Tom could not have been more accommodating in facilitating the sale of our small business. All queries were always attended to in a timely manner which made us feel at ease throughout the entire process. I highly recommend Coulter Legal if you are selling (or purchasing) a small business.
Alisha hallAlisha hall
11:28 28 Sep 23
I am incredibly grateful for the support and outstanding outcome of my family law case thanks to Satbir Singh. He is not only highly professional but also incredibly assertive in his approach. Satbir is a quick responder, which made me feel supported and informed throughout the entire process. I couldn't have asked for a better attorney to represent me. Highly recommended!
Lucille HampshireLucille Hampshire
05:23 24 Mar 23
Selling my home and purchasing a new home.I felt so very lucky to be placed in the hands of Melaine, Naomi and their team. Throughout the whole process nothing was too much to ask and everything was dealt with the utmost professionalism and caring, the journey from start to finish was flawless. I would highly recommend Coulter Legal to anyone looking to sell or purchase a home.
maxine flakemoremaxine flakemore
23:24 05 Jan 23
Being my first experience of the type of legal services supplied, I was quite apprehensive but felt really supported and attended to, when I spoke to Sebastian by phone. The process I was to go through was explained really well and his follow up support has been really assuring. Many thanks and I would highly recommend you services. I know who to call if I need legal representation in the future.
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What should I consider?

Yes, if you are deemed an eligible person.  An eligible person is:

  • A spouse or domestic partner of the deceased;
  • A child (including adopted child and stepchild) of the deceased;
  • A former spouse or domestic partner who would have been eligible to commence family law proceedings against the deceased; and
  • A member of the deceased’s household at the time of their death.

Initially, you must be able to establish that:

  • You have a financial need;
  • The deceased had a moral obligation to provide for you; and
  • What they provided (if anything) was insufficient.

There are a number of further factors which will be taken into consideration.  Expert advice is essential before commencing any Estate Dispute, as proceedings commenced without a proper basis can result in costs being awarded against you.

These factors include:
  • Any documents the deceased left detailing their reasons;
  • The nature of your relationship with the deceased;
  • The moral or financial obligations the deceased had to you and other beneficiaries (if any);
  • Your financial resources, and the financial resources of other beneficiaries;
  • The size and nature of the Estate;
  • How the Will or laws of intestacy fail to make adequate provision for you;
  • Your age, and the age of other beneficiaries;
  • Any conditions you, or other beneficiaries, have been diagnosed with;
  • Financial support provided by the deceased to you, or received by the deceased from you, during their lifetime;
  • Whether or not there is another person/s who owes you an obligation to provide for you in their Will;
  • The impact any change to the Will would have on the other beneficiaries; and
  • Your character and conduct during the proceedings.

If, after assessing the relevant factors, we consider your claim has sufficient merit and a realistic chance of success, we can assist you with initiating your claim and guide you through the Court process.

Ordinarily, we will contact the Executor (through their lawyer) to advise them of your potential claim.  Informal negotiations may then follow in an effort to resolve the dispute early, but if those negotiations are unsuccessful, we will file your claim with the Supreme Court.

The Court will then set out a timetable for the matter, including deadlines for:

  • Filing evidence – usually in the form of an Affidavit or Position Paper which details your claim in specific detail.
  • Conducting a mediation – where all parties come through in an effort to resolve the matter.  Most claims are resolved at this stage.
  • Conducting a Trial (if necessary) – where the claim is heard and determined by the Supreme Court.

Once the claim is resolved or determined, the administration of the estate will be finalised in accordance with the Terms of Settlement (agreed at mediation) or Court Orders (made by the Court after Trial).

There are 3 common grounds for the abilty to contest a Will:

Lack of Testamentary Capacity

A person making a Will must have ‘testamentary capacity’ at the time of making and signing their Will, in order for that Will to be deemed valid.

A person will be deemed to have testamentary capacity if they:

  • Understand the nature and importance of a Will;
  • Understand the nature and value of their assets;
  • Understand the effect of disposing of their assets in their Will;
  • Recognise there are people who may have a claim against their estate or an entitlement to provision;
  • Can balance and weigh-up those potential claims; and
  • Were not suffering from impairment (i.e. delusions, hallucinations, dementia) which would have affected their capacity.

If a person did not possess testamentary capacity when they executed their Will, their Will shall be deemed invalid.  In these circumstances, their most recent previous Will shall be relied upon, but if they did not have a prior Will, the intestacy provisions will apply.

Undue influence

A person must not be unduly influenced or placed under duress to prepare and sign their Will.  If there is evidence a deceased was influenced or placed under duress, and they resultantly executed a Will contrary to their wishes, the Will shall be deemed invalid.  Importantly, the Court will require strong evidence to be satisfied of undue influence.

Suspicious circumstances

The validity of a Will can be called into question if there was a significant change made to the Will shortly prior to the deceased’s death.  For example:

  • A beneficiary suddenly receiving substantially more provision;
  • A new beneficiary, not previously mentioned in a Will or who had only recently entered the deceased’s life, added to the Will as a major beneficiary; or
  • A major beneficiary was instrumental in preparing the most recent Will.

Validity may also be queried if:

  • The deceased suffered from substance addiction, frailty or illness;
  • The deceased had a sudden change in personality, habits or relationships;
  • The deceased suffered from a condition which would have made signing their Will impracticable or impossible but the document still bears their ‘signature’;
  • An Executor or major beneficiary named in the Will acted as translator for a deceased who had limited English skills; and/or
  • The Will was only witnessed by people named in the Will (Executor or beneficiary).

You should seek legal advice immediately.  The steps for challenging a Wills’ validity depend on how far the estate administration has progressed:

  1. If Probate of the Will has not been granted, you can file a Caveat to temporarily prevent Probate being granted, then take action to prove the invalidity of the Will; or
  2. If Probate of the Will has been granted, you can commence civil proceedings in relation to the Probate proceeding.

The Will shall be deemed invalid and the deceased’s prior Will shall be deemed their final Will.  If the deceased did not have a prior Will, the laws of intestacy shall apply.

You have six months from the date Probate is granted to contest the Will and can commence proceedings at any time within that six month period.  Once proceedings are commenced, it can take 6 – 12 months for a matter to be finalised, and if the matter proceeds to Trial, it is likely to take several years

The stages of the proceeding are generally as follows:

  • A Directions Hearing will be held approximately one month after proceedings are commenced;
  • The person contesting the Will is required to file their evidence approximately two months later;
  • The Executor is required to file their evidence approximately one month later;
  • A Mediation is to be conducted approximately two months later; and
  • If the matter does not settle at Mediation, the Court will list the matter for Trial – this will be at the Court’s discretion and dependent upon Court backlog.

We will provide you with our pricing options after considering your matter, and will provide you with our formal Disclosure Statement and Costs Agreement once you decide to proceed.  We will request a retainer from you to cover expenses, including Barrister’s costs.  Usually, the balance of our price will be paid from funds you receive once your claim is concluded.  We do, however, we reserve the right to render invoices at regular intervals, but this will be discussed with you at the outset of the matter.

If settlement is reached at mediation, Terms of Settlement will be prepared detailing what you are to receive from the estate and, shortly thereafter, you will receive your entitlement.  If the matter progresses to Trial and the Court determines in your favour, the Court will make an Order detailing the additional provision you are to receive from the estate.  The Court may also make an Order in relation to costs, which may result in the estate having to pay your costs, or each party bearing their own costs.

If you are unable to reach agreement through negotiation or at mediation and the matter progresses to Trial, the Court will make a determination about your claim.  If this decision goes against you, you will be left with the provision made for you by the Will (if any).  The Court may also make an Order in relation to costs, which may result in you having to pay the Estate’s costs.

Need to Contest a Will?
We can help.

The Coulter Legal Estate Litigation team can guide you through the process of contesting a Will.