Contesting a Will

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.