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.
Use our secure online induction in your own time to provide our lawyers with the information they need to assess your circumstances.
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.
Then our lawyers guide you through the process of navigating your claim.
Yes, if you are deemed an eligible person. An eligible person is:
Initially, you must be able to establish that:
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.
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:
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:
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:
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.
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.
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:
Validity may also be queried if:
You should seek legal advice immediately. The steps for challenging a Wills’ validity depend on how far the estate administration has progressed:
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:
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.
The Coulter Legal Estate Litigation team can guide you through the process of contesting a Will.